Regulating home education: negotiating standards ... - SSRN papers

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Regulating home education: negotiating standards, anomalies and rights Daniel Monk* Home education, or home schooling, is an issue that has attracted little attention and the legal framework has remained largely unchanged since 1944. However, the number of parents opting to home educate has been increasing steadily in recent years and the Government has now published guidance for local authorities and commissioned an independent review. This article reviews the current law, highlights the practical issues requiring clarification and identifies the connections with other policy developments such as Every Child Matters and the increasing regulation of the independent education sector. Critically evaluating the respective rights and interests of parents, children and the state it concludes that parents who opt to home educate should be required to register with local authorities. At the same time it argues that attempts to evaluate the content of home education can not be considered in isolation of broader political agendas and that the policy dilemmas confronting the forthcoming review touch upon complex questions about the meaning of education in a liberal democratic society.

INTRODUCTION

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or most child lawyers it is probably fair to say that home education1 is an obscure issue and in academic and practitioner texts it receives little, if any, attention.2 Its obscurity is reflected in law: very few cases and a legal framework that has remained unchanged since 1944 (and, indeed, arguably since 1870). This fact is all the more striking when one considers the radical and extensive transformation of the law of education over the last three decades.

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Senior Lecturer, School of Law, Birkbeck, University of London. This article is in part informed by informal interviews with home education coordinators at a number of local authorities. I am grateful to them for the time made available to me and to the Faculty of Arts at Birkbeck for the award that supported this research. I am also grateful to the email exchanges on the Home education research discussion list, and to the helpful suggestions of Jane Fortin and the anonymous referees. Opinions and errors are, of course, mine alone. While the expression ‘home education’ is used here, it is sometimes referred to as ‘home-schooling’ and more recently as ‘elective home education’. For a review see D. Monk, ‘Problematising Home Education: Challenging “Parental Rights” and “Socialisation” ’, (2004) 24(4) Legal Studies 568–598. The exception is the work of A. Petrie who writes in support of parents’ rights: ‘Home Educators and the Law within Europe’ (1995) 41(3–4) International Review of Education 285–296; ‘Home education and the law’ (1998) 10(2–3) Education and the Law 123–134; ‘Home Education in Europe and the implementation of changes to the law’ (2001) 47(5) International Review of Education 477–500. See also R. Dobson, ‘Suitable and Efficient: what about home education?’, Childright June 2007: 6–9.

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Child and Family Law Quarterly, Vol 21, No 2, 2009

However, the issue is beginning to have a higher profile and the number of parents opting to home educate is increasing.3 In November 2007 the Department for Children, Schools and Families published its first formal guidance (the DCSF Guidance),4 and in January 2009 the DCSF launched a consultation and commissioned a review that is due to report in May 2009.5 In addition, the UN Committee on the Rights of the Child recommended in its latest report that the government ‘make sure children who do not go to school get an excellent education’.6 Prior to these recent initiatives the Department for Education and Skills (DfES) commissioned research to assess the prevalence of home education generally7 and, separately, the implications of the home education of Gypsy, Roma and Traveller Children.8 It was also addressed in the DfES consultation on the Definition of Full Time Education in Independent Schools.9 Two other initiatives, which are not directly related, have highlighted the anomalous position of home education. First, there are the reforms in Part 10 of the Education Act 2002 and the Education and Skills Act 2008, which have increased regulation of independent schools.10 Secondly, there have been attempts to both extend and clarify the role of local authorities11 (LAs) and schools in dealing with child welfare issues as part of the broader Every Child Matters agenda. The aim of this article is to examine the current law and to highlight the key issues that will be the subject of the forthcoming review; in particular, compulsory registration, rights of access to the child and the criteria used to evaluate the content of home education. If the government decides to intensify regulation it will probably face 3

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It was ‘crudely’ estimated in 2006 that around 16,000 children are known to local authorities to be home educated: V. Hopwood et al, The Prevalence of Home Education in England: A Feasibility Study: Research Report No 827 (York Consulting Ltd, 2007), at para 3.24. This is a threefold increase from a similar study in 1999, but as this only refers to those known to local authorities the real number could be considerably higher and some estimate the figure to be closer to 50,000: see www.homeeducation.org.uk/ Department for Children, Schools and Families, Elective Home Education: Guidelines for Local Authorities (HMSO, 2007) (hereafter DCSF Guidance). (This replaced a number of earlier drafts.) In Scotland formal guidance was issued in accordance with the Standards in Scotland’s Schools Act 2000, s 14: Guidance on the circumstances in which parents may choose to educate their children at home (see: http://www.scotland.gov.uk/Resource/Doc/47171/0023793.pdf) See DCSF Press Notice 2009/0013 at: http://www.dcsf.gov.uk/pns/DisplayPN.cgi?pn_id=2009_0013 Committee on the Rights of the Child, (2008) Concluding Observations of the Committee on the Rights of the Child: United Kingdom of Great Britain and Northern Ireland CRC/C/GBR/CO/4, Centre for Human Rights, Geneva, para 84. V. Hopwood et al, The Prevalence of Home Education in England: A Feasibility Study: Research Report No 827 (York Consulting Ltd, 2007). DfES, The situation regarding the current policy, provision and practice in Elective Home Education for Gyspy, Roma and Traveller Children (HMSO, 2007). Note that this report’s recommendations apply to all home-educated children. See also M. Atkinson et al, Support for children who are educated at home (National Foundation for Educational Research, 2007), commissioned by the DfES. The consultation was closed in February 2007 and the response is available at: http://www.dcsf.gov.uk/ consultations/downloadableDocs/FTE%20Response.doc Part 4 of the Education and Skills Act 2008 relating to independent schools is not yet in force and is unlikely to be so until late 2010. The new Act is particularly significant, for while it does not extend regulation to home-based education, it will extend regulation to non-school based educational settings, which often form an important part of home education. How this will work in practice will depend on regulations yet to be drafted. Also relevant here is the Report by Sir Roger Singleton, ‘Keeping our school safe’: Review of Safeguarding Arrangements in Independent Schools, Non-Maintained Special Schools and Boarding Schools in England (DCSF, March 2009). While the term ‘local education authority’ is still used by legislation, the term local authority (LA) is used throughout this article in keeping with government policy to integrate children’s services.


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strenuous opposition from members of the home education movement.12 Conversely, no action will disappoint some LAs and child protection bodies. The issue is an emotive one with accusations of bias often made against both researchers who celebrate and support home education and those who call for stricter forms of regulation. The aim here is to endeavour to present the issues in as balanced a way as possible in order to identify the inherent tensions and paradoxes between the competing interests and rights claims and to locate the issue within a broader political context.

DEFINING HOME EDUCATION Before looking at the legal framework it is useful to distinguish between what is known about the issue and what is, too often, assumed. One of the challenges faced when thinking about home education is the fact that the label ‘home education’ tells us very little. It has been defined by the DfES as: ‘… where parents or guardians decide to provide education for their children at home instead of sending them to school. It is not home tuition provided by a local education authority or where a local education authority provides education otherwise than at a school . . . Home educated children are those who, for a range of reasons, are being educated at home and in the community by parents, guardians, carers or tutors and are not registered full time at mainstream schools, special schools, Pupil Referral Units (PRUs), colleges, children’s homes with education facilities or education facilities provided by independent fostering agencies.’13 This definition makes important distinctions between home education and other non-school based forms of education. But it fails to capture the myriad of practices, motivations and locations for home education. Indeed, the diversity is such that the label ‘home education’ describes not so much a form of education but, rather, simply the legal status of a child’s education. In other words, if a parent is a ‘home educator’ the only fact that we can be certain of is that he or she has exercised a legal right. As the definitions above make clear, it does not mean that the parent will be directly involved with the education or indeed that it will necessarily be in the home. In this way the label ‘home educator’ is in some ways similar to that of the ‘unmarried father’. In both contexts debates about the law are frequently, and unhelpfully, polarized with some arguing simply for enhancing parental rights while others argue for restricting those rights. The point here is not that the arguments made are invalid but that they are often made on the basis of a particular caricature or dominant stereotypes, both negative and idealised. Yet the diversity within these categories is so extreme that, unless one takes a particularly fundamentalist position, a one-size-fits-all approach is not only difficult to sustain intellectually but, applied to particular facts, will often be inappropriate. The need for caution against simplistic positions is clear when one considers the motivations of home educators. Research that has examined the reasons why people home educate has classified them in a number of ways.14 While different terminology is used, the research 12

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See ‘Consultations on Home Education’ (2009) 12 Home Education 5, and generally http:// www.education-otherwise.org/. Education Otherwise is the leading UK support and campaign group for home educators. Draft DfES consultation (2005) para 1.1; 2005 (copy with author). For other definitions see P. Rothermel, and A. Fiddy, ‘The law on home-education’, (2001) 181 ChildRIGHT 19–20. P. Rothermel, ‘Can we classify motives for home education?’ (2003) 17(2&3) Evaluation in Research and Education 74–89.


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frequently establishes a binary between two dominant groups: ‘Ideologues’ and ‘Pedagogues’;15 ‘Believers’ and ‘Inclusives’;16 ‘heaven-based’ or ‘earth-based’;17 ‘Authoritarians’ and ‘Non-Authoritarians’;18 ‘Competitors’ and ‘Rebels’19. Within these binary constructions the former represent conservative parents who object to what is taught in schools, often perceiving it to be a form of secular humanist indoctrination. In the USA these groups are closely aligned with the Christian Right and have been politically active and well organised in defending the rights of home educators.20 In the UK, while these groups exist, they are far smaller. The second group, often far less organised, reject schooling not so much for what is taught in schools but for the way in which it is taught, in particular the lack of flexibility. Favouring instead what is often described as being a more ‘child-centered’ approach, these parents are often influenced by the counter-culture values of the 1960s and 1970s and in particular the work of John Holt and other child liberationists.21 It is important to emphasise that many home educators do not fall clearly into either of these broad categories. This is the case where parents do not object to conventional schooling per se but choose to home educate as a response to what are perceived to be the needs of the individual child. Bullying is a particular important issue in this context but dissatisfaction with the schooling available or offered is arguably a growing factor for home education for a variety of other reasons.22 The binary categorisation also overlooks those parents who home educate for a short time only, for example up to the age of 7 or for those between the ages of 14–16. It also overlooks groups such as gypsies or travellers who are often not perceived as ‘home educators’ at all. The binary categorisation also fails to capture the fact that for many home educators there are multiple motives that often change over time. For example, conservative Christians may home educate but not for religious reasons, whereas alternative non-authoritarian home educators may be inspired by religious or spiritual rather than secular beliefs.

THE RIGHT TO HOME EDUCATE

‘Education is a fundamental right for every child and we recognise that parents have the right to choose to educate their children at home’23

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J. Van Galen, ‘Ideologues and Pedagogues: Parents who teach their children at home’, in J. Van Galen and M.A. Pitman (eds), Home Schooling: Political, Historical, and Pedagodical Perspectives (Ablex, 1991). M.L. Stevens, Kingdom of Children: Culture and Controversy in the Homeschooling Movement (Princeton University Press, 2001). Ibid. R. Meighan, ‘Home based educators and education authorities: the attempt to maintain a mythology’ (1984) 10(3) Educational Studies 273–286. S. Blacker, ‘Case studies in home-education’ (1981, unpublished thesis), referred to in R. Meighan, ibid, at p 278 and P. Rothermel, ‘Can we classify motives for home education?’ (2003) 17(2&3) Evaluation in Research and Education 76. See the website of the Home School League Defense Association: http://www.hslda.org. M.L. Stevens, Kingdom of Children: Culture and Controversy in the Homeschooling Movement (Princeton University Press, 2001). For an analysis of this trend see: J.G. Cibulka, ‘State Regulation of Home Schooling: A Policy Analysis’ in J. Van Galen and M.A. Pitman (eds), Home Schooling: Political, Historical, and Pedagodical Perspectives (Ablex, 1991). J. Knight and A. Adonis, DCSF Guidance, p 2.


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The above statement from the Ministerial Forward to the DCSF Guidance correctly represents the position in both domestic and international legal provisions. It makes clear that while the child’s right to education is fundamental, the parental right to home educate is not. Section 7 of the Education Act 1996 states that: ‘The parent of every child of compulsory school age shall cause him to receive efficient full-time education suitable— (a) to his age, ability and aptitude, and (b) to any special educational needs he may have, either by regular attendance at school or otherwise.’ It is the final two words, ‘or otherwise’, that establish the lawfulness of home education, as they construct a crucial distinction between education and school attendance, and ensure that only the former is compulsory. However, the expression, ‘or otherwise’, is not defined by statute and in practice refers not simply to home education but to a variety of non-school environments, such as hospitals and pupil referral units and to home tuition provided by LAs. Collectively these alternatives to school-based education are commonly referred to as ‘education otherwise’. There is, therefore, no explicit statutory reference to a parental right to home educate and from this it has been implied that the reference to ‘education otherwise’ does not primarily refer to home education and that, in effect, home educators have simply, ‘taken advantage of statutory provisions’.24 However, it has also been argued that, ‘it was no mere accident that the words “or otherwise” were included – there is no loophole there that parents use to get round the law’.25 While it is not possible to identify precisely the statutory intention behind those two all significant words it has long been established in case-law to refer to home education and while the expression was first used in the Education Act 1944, it can be traced back to the Education Act 1870.26 The DCSF Guidance states that ‘parents have a right to educate their child at home’27 and there are no indications that the government intends to alter this basic position. But the right to home educate is not an absolute legal right nor is it ‘fundamental’, which is to say that it is not above or beyond debate. Section 7 of the Education Act 1996 imposes a duty on parents to provide their children with an education that is ‘efficient’ and ‘suitable’ for that child. The right to home educate is therefore conditional on parents complying with this duty. In other words, parents have responsibilities for their children, not rights over them.28 Similarly, while section 9 of the 1996 Act asserts the ‘general principle that pupils are to be educated in accordance with the wishes of their parents’, this is subject to it being ‘compatible with the provision of efficient instruction and training’. These domestic provisions comply with the UN Convention on the Rights of the Child (UNCRC). Crucially, Art 28 of the UNCRC recognises a right to education but not a right to attend school. At the same time, however, Art 28 states that ‘young people should be encouraged to reach the highest level of education of which they are 24 25 26

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K. Poole, J. Coleman, P. Liell, Butterworths Education Law (1997), at p 11. J. Bendell, School’s Out: Educating Your Child at Home (Ashgrove Press, 1987) at p 100. D. Monk, ‘Problematising Home Education: Challenging “Parental Rights” and “Socialisation” ’ (2004) 24(4) Legal Studies 568–598. DCSF Guidance, at para 2.2. For a wide ranging analysis of parental responsibility see R. Probert, S. Gilmore and J. Herring (eds), Responsible Parents and Parental Responsibility (Hart, 2009).


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capable’ and Art 29 stipulates further the goals of education. These provisions, read together with the requirement in Art 4 that Governments ‘take all available measures to make sure children’s rights are respected, protected and fulfilled’, not only legitimises but, arguably, requires at least some form of state monitoring of home education. The formulation is similar in the European Convention of Human Rights. Article 2 of the First Protocol states that: ‘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’. While this provision is frequently stated as upholding the parental right to home educate, it has been established by case-law that ‘the convictions of parents must not conflict with the fundamental right of the child to education, the whole of Article 2 of the first protocol being dominated by its first sentence’.29 Consequently, as with domestic law, what is envisaged here is not unfettered autonomy for parents but a relationship between parents, children and the state. In determining the extent of the parental right under both domestic and human rights law, much depends on the definitions of ‘suitable’ and ‘efficient’ and ‘education’ and these are explored below. But recognising the conditional nature of the parental right touches on the debate about whether the right to home educate is ‘fundamental’. For some advocates of home education, the parental right is a ‘fundamental freedom’30 and ‘an essential part of democracy’31. These claims are politically strategic as they enable home educators to utilise arguments based both on the rights of individual parents and on the needs of society to defend themselves against what they perceive to be unjustified and potentially dangerous state intervention. For some home educators such claims are more than just ‘strategic’ and reflect beliefs in conservative or libertarian ideologies. This approach is particularly noticeable amongst home education activists aligned with the Christian Right in the USA, for whom counter arguments based on the independent rights of the child represent a thinly-veiled liberal secular threat to the family and as a means for justifying increased intervention by state and particularly federal government.32 There is a paradox here; for reliance on international and domestic law to legitimise the privacy rights of parents implicitly demonstrates both respect for and the necessity of the institutions of the State, and as numerous commentators have convincingly argued, the extent to which the ‘private’ sphere is ever truly private is questionable.33 For others it is a belief in the independent rights of the child that informs their ‘fundamental’ support for home education; an approach that is aligned with opposition to compulsory school attendance laws more generally. In challenging those who would argue that a child has a right to school life they point to research that highlights the complex and various ways in which schools fail children, and to statistics, such as those produced recently by UNICEF, that claimed that in the UK 20% of children are 29 30 31 32

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Campbell and Cosans v UK (1982) 4 EHRR 293, at para 40. Education Otherwise, Briefing, at p 1. A. Petrie; ‘Home education and the law’ (1998) 10(2–3) Education and the Law 123–134, at p 134. D. Buss, ‘ “How the UN Stole Childhood”: the Christian Right and the International Rights of the Child’, in J. Bridgeman and D. Monk (eds) Feminist Perspectives on Child Law (Cavendish, 2000). See, eg F. Olsen, ‘The Myth of State Intervention in the Family’ (1984–5) 18 University of Michigan Journal of Law Reform 835.


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unhappy in school.34 Concerns about the reality of school life have had an impact on numerous policy agendas and they reflect a broader cultural shift. Indeed, the growing awareness that schools can be dangerous places has significantly dented the colloquial truism that the years spent in school are ‘the best years of your life’.35 (Although this expression, arguably, always said more about perceptions of adult life and had little to do with children’s own perceptions). Yet, for children’s rights supporters of home education, the paradox is that their support leaves unquestioned the power parents have over their children. The decisions of the European Commission and the European Court of Human Rights in Leuffen v Germany36 and Konrad v Germany37, respectively, represent the most significant challenge to the claim that home education is a fundamental right. In Leuffen, and confirmed by the Court in Konrad in 2006, the Commission held that ‘Article 2 of the First Protocol does not prevent the State from establishing compulsory schooling’. By upholding the legitimacy of a total ban on home education, the judgments make clear that parents’ motivations are irrelevant, and, similarly, that there is no need for the state to show that home education could demonstrably harm the individual children.38 The German ban has attracted much criticism, particularly as it originates from a law enacted in 1938. For example, the President of the US Home School Legal Defense Association stated that: ‘It is hard to believe that within the civilized world in the 21st century we would still need to talk about actions used by the Nazi party in Germany to enforce civic conformity to the Nazi ideal. Unfortunately, this is exactly what is taking place in Germany today, and homeschoolers are the targets.39 Leuffen and Konrad both concerned conservative Christian parents who strongly objected to aspects of the teaching of secular values. While the decision in Leuffen focused exclusively on the child’s right to education, that in Konrad was broader. The European Court of Human Rights held that the German Constitutional Court’s emphasis on the ‘general interest of society to avoid the emergence of parallel societies based on separate philosophical convictions and the importance of integrating minorities into society’ was ‘necessary in a democratic society and in the public interest of securing the education of the child’ (emphasis added).40 While the margin of appreciation principle was applied to counter the fact that home education is lawful in the majority of European countries, the issue of proportionality was not addressed. Instead, the judgment simply refers, without comment, to the German

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UNICEF, Child poverty in perspective: An overview of child well-being in rich countries, (Innocenti Report Card 7, 2007). A Potts, ‘Schools as dangerous places’ (2006) 32(3) Educational Studies 319–330. Leuffen v Federal Republic of Germany (1992) Application No 00019844/92. Konrad and Others v Germany (2006) ECHR Application No 35504/03. In Leuffen this argument is slightly confused as it is hard to reconcile the Commission’s view that the right to monitor home education was ‘integral’ with a total ban which makes the former irrelevant, see D. Monk ‘Problematising Home Education: Challenging “Parental Rights” and “Socialisation” ’ (2004) 24(4) Legal Studies 568–598. J.M. Smith, ‘The Battle Against Fascist Conformity’, reported in Washington Times, 5 March 2007. For a balanced analysis of the position in Germany see T. Spiegler, ‘Home Education in Germany: An Overview of the Contemporary Situation’ (2003) 17(2&3) Evaluation and Research in Education 179–190. (2006) ECHR Application No 35504/03, at p 8.


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Constitutional Court’s finding that: ‘To hold that home education under the State’s supervision was not equally as effective to pursue these aims was at least not erroneous.’ Regardless of the respective merits of monitoring or a full ban,41 both decisions challenge the claim that home education is a fundamental right. The observations of the court in Konrad cohere with concerns raised by a number of US commentators, where the focus has similarly been aimed at fundamental Christian conservatives. Kymlicka, for example, argues that public schooling is essential and that families, parents, religious bodies and the market should not be relied on as ‘people will not automatically learn to engage in public discourse, or to question authority, in any of these spheres, since these spheres are often held together by private discourse and respect for authority’.42 Lubienski adopts a similar public interest critique of home education and argues that its increase reflects a ‘general trend of elevating private goods over public goods’ and that the withdrawal of children from schools is also a withdrawal of social capital that undermines the ability of public education to improve and to ‘serve the common good in a vibrant democracy’.43 Concurring with this, Apple argues that home education has ‘negative effects on our sense of community, on the health of the public sphere, and our commitment to building a society that is less economically and racially stratified.’44 As these responses demonstrate, the issue in the USA is located within a familiar left/right political binary. Hardenbergh, who describes herself as a ‘liberal’, recounts that by merely broaching the topic of deregulating home education her sister-in-law gasped and exclaimed, ‘You’ve become a Republican!’45 However, this perspective masks the extent to which the issue also reveals tensions and the ‘deadlocked polarities’ on the Left. For while the libertarian left, together with some advocates of identity politics who celebrate the recognition of ‘difference’ and ‘diversity’, find much to sympathise with the claims of home educators, from a collectivist left standpoint, and in particular for those wanting to prioritise economic or class issues, the privatisation of education, implicit in support for home education, provokes considerable unease. The concerns of the latter, as evidenced above, are reinforced by the dominant role of the Christian Right in the US as the most vocal and visible supporter of home education. But in the UK they also cohere with the concerns of many, always predicted and now confirmed unequivocally by research, that the political promotion of ‘choice’ in education has ‘reinforced social segregation’ ‘and contributed to inequality among schools’.46 Lynne Segal, a commentator with a foot in both these Left camps, commenting that a ‘return to economics’ is ‘no bad thing’, argues that:

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For a sustained argument in favour of monitoring, see R. Reich, Bridging Liberalism and Multiculturalism in American Education (University of Chicago Press, 2002).

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W. Klymlicka, ‘Education for Citizenship’ in J M Halstead and T H McLaughlin (eds), Education in Morality (Routledge, 1999), at p 88. C. Lubienski, ‘Whither the Common Good? A Critique of Home Schooling’, (2000) 75(1&2) Peabody Journal of Education 207–232, at p 207. M.W. Apple, ‘Away with all Teachers: the cultural politics of homeschooling’ (2000) 10(1) International Studies in Sociology of Education 61–80, at p 75. N. Hardenbergh, ‘Through the lens of homeschooling’ in B.S. Cooper (ed), Home Schooling in Full View: A Reader (Information Age Publishing, 2005), at p 97. N. Harris, Education, Law and Diversity (Hart, 2007) at pp 300 and 315. See also S. Ball, Class strategies and the Education Market: the middle class and social advantage (RoutledgeFalmer, 2003) and C. Chitty, ‘The Privatisation of Education’, (2009) 51(1) FORUM: for promoting 3–19 comprehensive education 73–84.

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‘[T]he promotion of multiple identities in the “community of difference” has been incorporated as a key strategy of the global capitalist order: eager to service people’s avid need for signs of authenticity, on the one hand; working to dilute any trace of politics, on the other.’47 For liberal/left commentators the last point has particular resonance. For while conservative and libertarian supporters of home education fully embrace the political implications of the issue, supporters of home education, who would strongly resist identifying themselves with either of these groups, are notably silent about the broader political dimensions and concerns about education. Instead they tend to simply focus on demonstrating the benefits of home education both for the individual children and the parents (and some would argue to the extent of overlooking potential risks). But the point here is not that the potential benefits of home education are not important or invalid. Nor is it to overlook the fact that the public provision of education could indeed be improved by taking seriously many of the motivations of home educators, but, rather, that advocating ‘parental rights’ and focusing exclusively on individualised outcomes, at best simply fails to address the collectivist concerns and at worst exacerbates them.

MONITORING HOME EDUCATION The critical question now is not whether home education should be permitted but how it should be monitored. But determining whether LAs require more or less powers is complicated by the fact that the existing legal framework is open to different interpretations. Moreover, while the issues touched upon here appear practical, resolving potential disputes here requires returning to some of the more complex philosophical and political issues discussed above. The issues raised in relation to the monitoring of home education can be divided into three categories: registration, surveillance and criteria. Each raises different but interrelated questions.

Registration: to tell or not to tell?

‘It is a legal right, not something about which you have to avoid detection or be granted special permission for’48

The above statement by Jean Bendell, a home educator writing in 1987, demonstrates how the language of rights can be used to legitimise a minimal form of monitoring. If one has a right to do something then there is, it follows, no logical reason why one should have to ask permission to exercise it. Rather, the burden should be on the authorities to justify a violation of the right. Parents are not required to come forward and demonstrate compliance with other aspects of parental responsibility, consequently one can question whether education should be treated any differently. However, if the emphasis is placed on the parental duty, rather than the right, then it is easier to require parents to demonstrate compliance. The question as to whether parents should have to prove that they can home educate, or whether the burden should be on LAs to prove otherwise, underlies debates about whether a parent who decides to home educate should be required to inform the relevant LA. The issue is complicated by the fact that under the current law a number of different rules apply. 47 48

L. Segal, Making Trouble: Life and Politics (Serpent’s Tail, 2007), at p 131. J. Bendell, School’s Out: Educating Your Child at Home (Ashgrove Press, 1987), at p 100.


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Where a child has never attended school, ‘parents are not required to register or seek approval from the local authority’.49 This is also the case when a child is ‘naturally deregistered’50 from a school, for example, transferring from nursery to primary or primary to secondary. In these situations it is possible, and perfectly legal, for an LA to have no record that the child is being home educated. Indeed where a child has never attended school they may have no knowledge of that child (and this is one of the reasons why LAs have no certainty of the number of children being home educated). The position is different where parents wishing to home educate are removing a child from a maintained school.51 Here, while the DCSF guidance makes clear that LAs have ‘no legal right to insist’ that parents inform them of their decision,52 statutory regulations require the parents to inform the school of their decision53 and the school, not the parent, is then required to inform the LA.54 While the law only requires the school and the LA to be informed, concerns have been expressed that new regulations introduced in 2006 represent a subtle move towards removing parents’ right to deregistration ‘on demand’.55 If this is the case then it would represent a move towards the position under Scots law where the consent of the LA is required if a pupil is withdrawn from school.56 Even in England, the consent of the LA is required when a child is being removed from the roll of a special school.57 Roland Meighan, a key figure in the home education movement, argues that ‘[t]here is a loophole in the law that favours the LA and that concerns registration.’58 The suggestion here is that while the Pupil Registration Regulations have the effect of requiring some home educators to register with LAs, this is an unintended impact of the Rules. There is some strength in this argument; if Parliament had intended home educators to register with LAs, the law would apply to all home educators. Similarly, in relation to the specific rule relating to special schools, Education Otherwise comment that:

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DCSF Guidance, at para 2.4. A. Petrie, ‘Home education and the law’ (1998) 10(2–3) Education and the Law 128. The Singleton Report has recommended that independent schools must inform local authorities when a child leaves the school: ‘Keeping our school safe’: Review of Safeguarding arrangements in Independent Schools (DCSF, 2009). DCSF Guidance, at para 3.10. Education (Pupil Registration) (England) Regulations 2006 (SI 2006/1751), reg 8(1)(d). Ibid, reg 12(3). Under the previous Regulations, which still apply to Wales, the school must inform the LA ‘within 10 days of the name being deleted from the register’: Education (Pupil Registration) Regulations 1995 (SI 1995/2089), reg 13(3). In England, the new regulation now requires that the LA be informed as soon as the pupil has ceased to attend school and notification has been received from the parent and, ‘in any event no later than deleting the pupils name from the register’. By bringing forward the time limit and, in particular, by suggesting that LAs be informed prior to deregistration it has been suggested that the purpose of this new regulation is to enable LAs to encourage families to return the child to school or to delay deletion from the roll until LAs have inspected the educational provision at home: see ‘Legally Brief’ (2006 ) 3 Home Education 47. See also L. Haywood-Samuel, ‘Deregistration – A right in law?’ (2006) 1 Home Education 37–39. Education (Scotland) Act 1980, s 35. It would also represent a return to the position in England and Wales under the Pupils’ Registration Regulations 1956 (SI 1956/357), r 4, which was repealed by the 1995 rules. (SI 2006/1751), r 8(2) 2006. R. Meighan, ‘Home based educators and education authorities: the attempt to maintain a mythology’ (1984) 10(3) Educational Studies 277.


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‘… consent is required in these cases only to smoothe the transition to home education for children with complex special needs. The regulations are not intended to be a hindrance to these children being educated at home and any such suggestion would be discriminatory’.59 Faced with these interpretations it is not surprising that some LAs believe that there is indeed a ‘loophole’ in the law, but that it should be dealt with by requiring all parents who wish to home educate to notify the relevant LA.60 The key argument made in support of introducing compulsory registration for all home educators is that without it LAs will be unable to comply with their statutory duties in relation to both the education and welfare needs of children.

Local authority duties and responsibilities The key provision is the requirement under the Education Act 1996 s 437(1) that: ‘… 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’ (emphasis added). This makes clear that it is for LAs and not parents to determine what is ‘suitable education’. But while the duty to serve a notice is absolute (‘they shall serve a notice’), ‘suitable education’ is not defined. Consequently, this creates a wide discretionary power for LAs and interpretations vary hugely across the country. The criteria adopted for evaluating the effectiveness of home education is clearly critical and it is explored below. In the context of determining whether the duty requires compulsory registration, it is the expression ‘if it appears’ that is critical. The Advisory Centre for Education suggest that ‘LEAS cannot fulfil this duty if they have no information about the education which is being given to a child otherwise than at school.’61 This view implicitly supports the case for compulsory registration. However, Education Otherwise states that: ‘[T]he duty is concerned solely with children who appear not to be receiving suitable education. Beyond this, nothing in the Act requires a local authority to carry out regular monitoring of provision where a child is receiving education otherwise than at school’.62 Education Otherwise challenges the idea of compulsory registration, but while their interpretation suggests a low level of monitoring, it assumes that the LA must know about the child – otherwise no form of monitoring is possible. The DCSF guidance states that ‘local authorities have no statutory duties in relation to monitoring the quality of home education on a routine basis’.63 While the word ‘routine’ here could be interpreted as acknowledging that not all home educators will be monitored, the 59

60 61 62

63

Education Otherwise, A Summary of the Law Relating to Home Education in England and Wales (Education Otherwise, 4th edn), at p 9 (available at: http://www.education-otherwise.org/legal.htm). M. Fortune-Wood, ‘LEAs & What they really think!’ (2006) 3 Home Education 28–34. Advisory Centre for Education Information Sheet, Home Education, 1996, at p 1. Education Otherwise, A Summary of the Law Relating to Home Education in England and Wales (Education Otherwise, 4th edn), at p 4 (available at: http://www.education-otherwise.org/legal.htm). DCSF Guidance, at para 2.7.


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reference to ‘quality’ could be interpreted to suggest that LAs should, at minimum, have knowledge of the fact of home education. The position is far from clear and the confusion has been confounded by earlier forms of advice from the DfES. The first draft guidance did not address the point at all but simply stated that local authorities: ‘… must satisfy themselves that the child is being properly educated . . . it is good practice for LEAs to keep a register of children educated at home in their areas …’ (para 2, emphasis in the original). According to Mike Fortune-Wood, a leading figure in the home education movement, this draft contained ‘serious legal errors’ and ‘met fatal opposition from the home education community when it was inadvertently leaked.’64 The impact of these criticisms is clear from the significantly different approach adopted in the subsequent draft guidance published in 2005, which adopted a far more circumspect approach.65 The current DCSF guidance fails to give LAs advice over their duties regarding the home educated children not known to them. And while the case-law, discussed below, provides some assistance, this is an issue that clearly needs to be addressed in the forthcoming review. Moreover, when resolving this issue, account must be taken of LAs’ general duties relating to children not receiving education and child protection.

Children missing education The Education and Inspection Act 2006 creates two new duties that one can argue require the introduction of compulsory registration. Section 4 states that: ‘(1) A local education authority must make arrangements to enable them to establish (so far as it is possible to do so) the identities of children in their area who are of compulsory school age but— (a) are not registered pupils at a school, and (b) are not receiving suitable education otherwise than at a school.’66 Subsection (b) makes clear that this provision does not relate to home educated children that are receiving suitable education. But in order to enable them to establish this, the duty not only legitimises investigation by an LA but, in contrast to section 437(1), arguably imposes a more positive obligation to act. This interpretation is adopted by the guidance issued under section 4 above in January 2009. Paragraph 87 states: ‘In order to comply with this duty local authorities need to make arrangements which will as far as possible enable them to determine whether any children who are not pupils at school, such as those being educated at home, are receiving

64 65

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M. Fortune-Wood ‘LEAs & What they really think!’ (2006) 3 Home Education 28–34, at p 28. For example it advised that ‘there is no express requirement in the 1996 Act for the LEAs to investigate actively whether parents are complying with their duties under section 7’ (Draft guidance (2005), para 3.10. See also para 3.10, copy with author). Education Act 1996, s 436a (as inserted by Education and Inspections Act 2006, s 4) (emphasis added).


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suitable education. In order to do this local authorities should make enquiries with parents educating children at home about educational provision being made for them’.67 The second relevant duty is introduced by section 1 of the 2006 Act, which imposes a duty that explicitly refers to home educated children. It states that: ‘(1) A local education authority shall ensure that their functions relating to the provision of education to which this section applies are (so far as they are capable of being so exercised) exercised by the authority with a view to— (a) promoting high standards, (b) in the case of a local education authority in England, ensuring fair access to educational opportunity, and (c) promoting the fulfilment by every child concerned of his educational potential. (2) This section applies to education for(a) children of compulsory school age (whether at school or otherwise).’68 Support for the argument that the above new duties are compatible with the absence of compulsory registration for home educators can be found in the references to ‘so far as it is possible’ in section 4 and to ‘so far as they are capable of being so exercised’ in section 1. Moreover, the 2009 Guidance acknowledges that parents do not have to inform local authorities where the child has not previously attended school.69 But LAs will no doubt be able to argue that the absence of compulsory registration will hinder their ability to comply with the spirit, if not the letter, of the law expressed in these new duties.

Child welfare and protection duties Fortune-Wood argues that: ‘[I]t seems to be a common error among LEAs that they have a duty to proactively seek access to children to determine whether their welfare is at risk merely on the grounds that they are being educated at home.’70 Whether LAs have, or should have, a right of access to home educated children will be looked at below. But the issue of child welfare, and in particular the possibility that home education can hinder detection of a child in need of protection has led to fierce exchanges between children’s rights agencies and home educators and is critical in determining whether LAs require information about all home educated children. Section 175(1) of the Education Act 2002 states that: ‘A local education authority shall make arrangements for ensuring that the functions conferred on them in their capacity as a local education authority are exercised with a view to safeguarding and promoting the welfare of children.’ 67

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Department for Children, Schools and Families, Revised statutory guidance for local authorities in England to identify children not receiving a suitable education (HMSO, 2009) (emphasis added). For a critique of this interpretation see (2009) 12 Home Education 56. Education Act 1996, s 13 A (as inserted by the Education and Inspections Act 2006, s 1) (emphasis added). Department for Children, Schools and Families, Revised statutory guidance for local authorities in England to identify children not receiving a suitable education (HMSO, 2009), at para 91. M. Fortune-Wood, ‘LEAs & What they really think!’ (2006) 3 Home Education 28–34, at p 29.


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The DCSF guidance makes clear these are ‘general duties’ and the emphasis throughout is on multi-agency cooperation. In other words, where education officers within an LA have child protection concerns they should inform social services departments.71 However, the new duty, from an LA perspective, strengthens the argument for legal reform in the same way as do the new duties introduced by the Education and Inspections Act 2006. For while the precise practical implications of section 175 are vague, the government has made clear that it is crucial to ensure that schools and those responsible for education play a key role in supporting the reforms introduced by the Every Child Matters agenda, now enshrined in the Children Act 2004.72 However, the relevance of this wide-ranging agenda on home education is not clear, for the guidance document, Every Child Matters – Change for Children in Schools73, states that ‘pupil performance and well-being go hand in hand’ and so in highlighting the extended role of schools it is assumed that all children attend school. This is also clear from the guidance when it states that one of the aims is: ‘[S]upporting closer working between universal services like schools and specialist services so that children with additional needs can be identified earlier and supported effectively’ (p 1, emphasis added). In a similar vein it refers to ‘ensuring attendance’ and ‘engaging and helping parents in actively supporting their children’s learning and development’, but in no place refers to the possibility of home education. This approach, coupled with the fact, as mentioned above, that the Education Act 2002 increases regulation of independent schools across a wide range of both educational and welfare issues,74 makes the position of home education increasingly anomalous.75 As a result some LAs have expressed concerns that, every child matters . . . unless it is a home educated child. The new emphasis on introducing welfare perspectives into the education sphere is also evident from section 176(1) of the Education Act 2002, which requires LAs ‘in the exercise of any of their schools functions’ to have regard to government guidance about ‘consultation with pupils in connection with the taking of decisions affecting them’. Despite the misleading reference to ‘schools’ functions’ and ‘pupils’, it is significant that the LAs’ functions here are explicitly defined as including ‘the provision of education for children of compulsory school age otherwise than at school’76. Once again this new duty arguably supports the case for compulsory registration of home education.77 71

DCSF Guidance, at para 4.7.

72

See Children Act 2004, s 10(2)(b). The Contactpoint initiative, a national database for all children to ensure that children do not ‘slip through the net’, is particularly significant here and is being closely followed by officials within LAs with responsibility for home education, as the statutory provision behind its introduction states that it may include ‘details of any education being received’: s 12 (4)(d). Department for Education and Skills, Every Child Matters – Change for Children in Schools (HMSO, 2004). Education Act 2002, s 157(1)(a)–(c). While the Education and Skills Act 2008 will extend this regulation to part-time education and a far wider range of non-school based educational institutions it does not enable regulation of home based education. This point was made by the Education Minister Lord Adonis in a letter to a home educator: ‘Light Touch Changes’, (2007) 5, at p 9. Education Act 2002, s 176(3)(c). With regard to listening to children, the DCSF Guidance states that the duty of local authorities in s 53 of the Children Act 2004 to take into account child’s wishes and feelings, ‘does not, for example, place an obligation on local authorities to ascertain the child’s wishes about elective home education as it is not a service provided by the local authority’ (para 2.16).

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Schools have always been an important site for the identification of child protection issues78 and, to a certain extent, the new reforms merely serve to reinforce the long-recognised value of encouraging different agencies to work together more effectively. Moreover, while it is logical and understandable that the Every Child Matters agenda has resulted in some LAs questioning the existing legal framework of home education, in an increasingly familiar rush to pass new laws and create new powers, it should not be forgotten that the Children Act 1989 provides social workers with extensive powers to protect children.79 Furthermore, as Fortune-Wood argues in relation to child protection, ‘[h]ome education is not a prima facie cause for concern, anymore than a parent caring for a child under five and not yet at school is regarded as a prima facie welfare problem.’80 A similar point was made in a contested adoption case in which Charles J held that ‘none of the professionals involved advanced arguments against home education on the basis that as such, or in general, it was or would be inappropriate.’81 Concerns linking child abuse with home education are – not surprisingly – vehemently rejected by home educators and indeed the consultation process has been criticised for being ‘discriminatory’ and a ‘clear incitement to hatred’ for even suggesting any possible connection.82 This response, however, arguably confuses genuine concerns about abuse with criticisms of home education per se and fails to acknowledge that the existence of rigorous safeguards will make clearer the distinction between genuine home educators and those using home education simply as a means of avoiding detection.

Voluntary registration and support As the above discussion demonstrates it is possible to interpret the existing law in a way which argues both for and against the need for compulsory registration. But these arguments overlook other important considerations. One of the advantages of LAs being aware of home educated children is that it enables them to provide support for them – a point repeatedly emphasised in the DSCF guidance. This can take a variety of forms, such as advice about teaching resources, materials and methods.83 However, as the guidance makes clear, ‘local authorities do not receive funding to support home educating families’84 and consequently expanding this provision could be criticised for reducing the resources available for maintained schools. The DCSF Guidance also recommends that ‘contact details for home education support organisations should be provided’ (para 4.5). These contacts are often of great value to both the parents and the children and it could be argued that the potential 78

79

80 81 82

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See, for example, R. Webb and G. Vulliamy, ‘The Primary Teacher’s Role in Child Protection’ (2001) 27(1) British Educational Research Journal 59–77. The NSPCC, however, have argued that s 47 of the Children Act 1989 requires some evidence of concern and together with the London (LA) Children Safeguarding Leads network considers the existing legislative framework unbalanced: NSPCC Response to the Revised Statutory Guidance for Local Authorities in England to identify children not receiving a suitable education (NSPCC, 2008). M. Fortune-Wood, ‘LEAs & What they really think!’ (2006) 3 Home Education 28–34, at p 29. J and another v C and another [2005] EWHC 1016 (Ch), [2005] All ER 427, at para [98]. H. Wilce, ‘Is the Government right to be concerned about home-schooling?’, reported in The Independent, 26 February 2009. DCSF Guidance, at paras 5.2 and 5.8. However, it also makes clear that ‘when parents choose to electively home educate their children they assume financial responsibility for their children’s education’ (para 5.2). Home educated children are also explicitly not entitled to the educational maintenance allowance available to over 16s who stay on in education (para 5.8). Ibid, para 5.2.


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benefits of this contact supports the introduction of compulsory registration. However, there are two problems with this argument. The first is that this information could be made available to all parents, in part by increasing awareness of the legality of home education; an approach that would comply with LAs’ duties to ‘increase opportunities for parental choice’85. Secondly, it overlooks the fact that making the relationship between LAs and parents compulsory risks losing the advantages of keeping the relationship one based on voluntary co-operation.86 The benefits of this are, of course, hard to quantify; moreover, the experience of service provision under Part III of the Children Act 1989 provides an important lesson. In that context the much heralded advantages of a ‘stigma-free’ partnership between families and social services has, in the past, proved to be more rhetorical than real, as the ‘voluntary’ nature of the relationship masked an inherently unequal balance of power where the ever present threat of legal action resulted in both a real and perceived ‘co-operate or else’ scenario.87 The fear of prosecution leads some home educators to avoid contacting the LA, as Bendell explains, ‘the longer they are undetected the less time they have to worry about satisfying the authority’88. Other parents adopt a different strategy, contacting the LA early on in order to present themselves as ‘caring and concerned parents’ and co-operating in order to avoid more intrusive interventions.89 As Bendell observed from her own experience, periodically sending in a report on the child’s progress was ‘less of an imposition than over frequent visits’.90 Some LAs, however, argue that satisfying them in report form is harder than permitting a 2-hour annual visit. It is likely that some parents will avoid registration even if compulsory registration is introduced. A policy of coercion from the outset is, however, unlikely to develop a relationship based on trust and openness and would effectively criminalise parents who may be providing suitable education. It could be argued that those who are ‘genuine’ home educators have nothing to fear from registration; indeed many already do so voluntarily. But this argument returns us to the civil liberty aspect of the right to home educate. From that perspective the argument raises the same practical and principled objections as those made against the proposed introduction of compulsory ID cards. It is an unwarranted interference that will be ignored by those who do indeed have ‘something to hide’. Such an argument, however, overlooks the legitimate interest of the state in playing an active role in protecting the right of every child to education. But in order to understand the extent to which the fears about registration are justified, it is important to appreciate the implications of being known to LAs.

85

Education and Inspections Act 2006, s 2. However, while this duty refers to diversity of provision in secondary and primary education, it also refers to diversity in provision of schools.

86

Draft guidance issued in 2005 advised that ‘it may be helpful in developing positive relationships for the contact person within or employed by, the LEA to be referred to as an “adviser”, “home-educating consultant”, or “facilitator” rather than as an “inspector”, “examiner” or “assessor” even where the usual term may be “educational welfare officer” ’ (para 4.9). Underfunding as a result of voluntary services being, wrongly, perceived as ‘non-statutory’ is another lesson. See generally N. Parton (ed), Child Protection and Family Support: Tensions, Contradictions and Possibilities (Routledge, 1997). J. Bendell, School’s Out: Educating Your Child at Home (Ashgrove Press, 1987), at p 108. Evidence of ‘co-operation’, regardless sometimes of the outcome, is an increasingly significant factor in school attendance cases, see D. Monk, ‘Parental Responsibility in Education: Taking the Long View’ in R. Probert et al, Responsible Parents and Parental Responsibility (Hart Publishing, 2009), at pp 213–243. J. Bendell, School’s Out: Educating Your Child at Home (Ashgrove Press, 1987), at p 114.

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SURVEILLANCE AND MONITORING POWERS While there is uncertainty about the circumstances in which LAs are obliged to investigate, their statutory powers are relatively straightforward where they have concerns about the nature of the education provided. As referred to above, where ‘it appears’ to the LA that the child is not receiving ‘suitable education’, section 437(1) of the Education Act 1996 requires the LA to serve a notice on the parents that requires them to satisfy the LA that they are complying with their duties under section 7. Within LAs, however, those responsible for monitoring home education are very rarely the same individuals as those responsible for enforcing school attendance and much depends upon on the existence of effective communication between the two. The former may consider proceedings appropriate but the notice requires naming of a school and finding a school place is not always straightforward – particularly in situations where schools have ‘encouraged’ parents to home educate as a way of resolving dealing with a difficult pupil.91 Confusion also exists in determining what LAs can and should do prior to commencing school attendance proceedings. A key case here is Phillips v Brown92 where the parents appealed against the conviction and fine imposed by magistrates for failure to comply with a school attendance order (SAO). They challenged the issuing of a notice under section 437(1) on the grounds that nothing had been done for it ‘to appear’ to the LA that suitable education was not being provided and that consequently the LA was neither bound nor entitled to make enquiries of the parents. Donaldson J, rejecting this argument, held as follows: ‘… where an authority has a duty to take action in particular circumstances, it also has a duty to be alert in order to detect the possibility that those circumstances exist93 . . . I do not accept that it should do nothing. This would rightly be criticised as an attempt to behave like an ostrich – to put its head in the sand in order that it should not learn of anything which might place upon it the burden of discharging its duty to consider making and, in appropriate cases, to make school attendance orders. The most obvious step is to ask the parents for information. Of course, such a request is not the same as a notice . . . and the parents will be under no duty to comply. However, it would be sensible for them to do so. If parents give no information or adopt the course of merely stating that they are discharging their duty without giving any details of how they are doing so, the LEA will consider and decide whether it “appears” to it that the parents are in breach of section 36 [now s 7 of the EA96].’ The case has given rise to confusion; the reason for this, arguably, is that it is authority both for parents being entitled to refuse to comply with informal requests for information and, at the same time, for LAs to adopt a pro-active approach to monitoring home education. The DCSF Guidance cites the case three times, but only as a footnote reference to the expression ‘it would be sensible for them to do so’ which is used in relation to parents’ compliance with informal requests by an LA.94 It does not, 91

92 93

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The current DCSF Guidance (para 3.12) states explicitly that this exclusions avoidance practice is unacceptable, but in reality it is hard to protect against as a parent may ‘agree’ to remove the child and home educate in order to avoid the stigma of their child being excluded. Philips v Brown (unreported transcript 424/78 QB (DC)) 20 June 1980. The authority referred to for the interpretation of ‘if it appears’ was Secretary of State for Employment v ASLEF (No 2) [1972] 2 QB 455, [1972] 2 All ER 949, CA. DCSF Guidance, at paras 2.8, 3.4 and 3.6.


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however, say why it would be sensible to comply with requests, although the obvious answer is the threat of possible legal action. Rather cryptically, the DCSF Guidance simply advises that one of the advantages of developing a ‘positive relationship’ between parents and LAs is that it will ‘provide a sound basis if the authority is required to investigate assertions from any source that an efficient and suitable education is not being provided’.95 In response to the fact that some LAs have been criticised for being too quick to resort to legal action, the DCSF Guidance advises that prior to commencing school attendance proceedings ‘local authorities are encouraged to address the situation informally’96; that ‘parents should be given the opportunity to address any specific concerns that the authority has’97; and that ‘local authorities should bear in mind that, in the early stages, parents’ plans may not be detailed and . . . a reasonable timescale should be agreed for the parents to develop their provision98. However, the 2005 draft guidance went further and stated that ‘[o]nly in extreme cases, where the education is clearly not efficient, should a SAO be served’99. The approach adopted here is influenced by the importance attached to encouraging LAs to establish trusting and co-operative relationships with parents. This upholds respect for the rights of parents and, perhaps, an awareness of the potential detrimental impact of court proceedings on children. In this way the guidance here clearly mirrors the approach required in relation to proceedings under the Children Act 1989. However, fairness to parents may result in delays, and children potentially not receiving efficient, or any, education for long periods of time; a factor that can also make it harder to resume school-based education. Fairness in proceedings was also emphasised in R (Perry) v Gwent County Council.100 Here, a father was unsuccessful in his attempt to deregister his child from school. The court held that the LA must give parents ‘a sufficient time to set in motion their arrangements for home education’ and ‘a fair and reasonable opportunity’ to satisfy the concerns of the LA. Slade LJ also made clear that while ‘in some special cases fairness would demand that the authority should draw specific matters to the parent and invite further information and comment’, flexibility here was permissible. As in this case, for example, ‘the parent should have been expected to realise that all the points which he submitted should have been brought to his attention were matters as to which the council representatives would require to be satisfied.’ In rejecting the father’s arguments and concluding that in this case the LA had acted fairly, Slade LJ implicitly commended the LA for, prior to commencing legal action, having: ‘… sent representatives to the home to inspect for themselves the syllabus and other educational facilities being provided for the child and to see for themselves the end product as reflected in the child’s intellectual and other development’. This is significant, because while the judgment suggests that this approach is fair and arguably an appropriate course of action, the issue of LA access to the home and how an LA should respond to a refusal to allow access is highly controversial. The DCSF guidance states that: 95 96 97 98 99 100

DCSF Guidance, at para 4.2. Ibid, at para 2.8. Ibid, at para 3.4. Ibid, at para 3.11 2005 Draft guidance, at para 3.21 (copy with author). R (Perry) v Gwent County Council (1985) 129 SJ 737, CA.


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‘Where a parent elects not to allow access to their home or their child, this does not of itself constitute a ground for concern about the education provision being made. Where local authorities are not able to visit homes, they should, in the vast majority of cases, be able to discuss and evaluate the parents’ educational provision by alternative means’ (para 3.6, emphasis added). It also states that while LAs can, if there are grounds for concern, insist on seeing children in order to enquire about their welfare by means of powers under the Children Act 1989, ‘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’ (para 2.15). Once again confusion abounds, for the previous draft guidance advised that: ‘If the parents refuse access to their home, the authority might reasonably conclude in these circumstances that they have insufficient information to satisfy themselves as to the efficiency and suitability of the parents’ education provision, and consequently serve a School Attendance Order’ (para 3.19, emphasis added) The above statement is closer to the approach adopted by Donaldson J in Phillips v Brown where he held that, in relation to a request for information, ‘if the parents refuse to answer it could very easily conclude that prima facie the parents were in breach of their duty’.101 The position adopted in the current DCSF guidance demonstrates the difficulty faced by the DCSF in its attempt to placate the concerns raised by lobbyists from the home education movement and the increasing demands made by a number of LAs for a right of access. But clearer guidance is arguably required as it fails to reassure LAs of the legitimacy of their claim that access may be necessary for them to comply with their statutory duties. Moreover, the limited case-law is open to conflicting interpretations and predates the child welfare and protection duties noted above. In R (Tweedie) v Surrey Quarter Sessions Appeals Committee,102 a SAO had been made for children but revoked on the basis of the mother’s evidence that she would home educate and would permit inspection. While the mother subsequently submitted reports, she refused to allow an inspection and the LA recommenced proceedings. The mother then challenged the LA’s insistence on an inspection by judicial review but was unsuccessful. The court held that: ‘Although as a general rule, an education authority should not insist on inspection as the only method of satisfying themselves that children are receiving an efficient full-time education, there are exceptions where the authority is entitled to insist on such inspection’. Petrie’s interpretation of this ruling is that ‘LEA officials can only insist on home visits after first seeking authorisation from the courts’103. But this arguably overstates the case and conflicts with the approach suggested in Phillips v Brown and Gwent County Council. Parents are entitled to challenge an insistence on access by way of judicial review; but this is not the same as saying that LAs can not make such a demand 101

Phillips v Brown (unreported transcript 424/78 QB (DC)) 20 June 1980.

102

R (Tweedie) v Surrey Quarter Sessions Appeals Committee [1963] Crim LR 639, [1963] 61 LGR 464 DC 1208 and 1209. 103 A. Petrie, ‘Home education and the law’ (1998) 10(2–3) Education and the Law 128.


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without authorisation by the courts. Consequently, an alternative interpretation is that an LA can insist on an inspection, as long as it is able to demonstrate that it has explored other alternative methods of evaluating the education provided and that they can reasonably conclude that these alternative methods have failed to satisfy them. Moreover, by not stipulating what the ‘exceptional’ circumstances are that will justify an inspection, the case implicitly recognises the legitimacy of LA discretion in this matter. The DCSF Guidance states that as an alternative to home visits by the LA, ‘parents might prefer, for example, to write a report, provide samples of work, have their educational provision endorsed by a third party’.104 While this is correct, regardless of the preference of the parents, it would be more precise to make clear that, however the information is provided, it must satisfy the LA that the education is efficient, and that where it does not do so, the LA is entitled to request alternative methods. Parents are, of course, entitled to challenge the LA’s finding that the education is not efficient, thereby leaving it to the courts to resolve the dispute. But while a court may disagree with an LA about this substantive point, challenging an LA’s insistence on an inspection is highly unlikely to succeed. Some advocates for home educators defend the parents’ right to refuse access to the home on the basis of the right to privacy in Art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (ECHR). This is a legitimate argument, especially as it is one that would not have been considered in Tweedie, decided as it was in 1963. But while the specific right of access has not been considered by the European Court of Human Rights (ECtHR), its approach to home education generally suggests that such an argument would be unlikely to succeed, as the rights of the parent have been held to be subject to the rights of the child. Of particular relevance here is the decision of the ECtHR in H v United Kingdom (1984) where the Court held that: ‘It is clear that Art 2 of Protocol No 1 implies a right for the state to establish compulsory schooling, be it in State schools or private tuition of a satisfactory standard, and that verification and enforcement of educational standards is an integral part of that right . . . requiring the applicant to cooperate in the assessment of children’s educational standards … cannot be said to constitute a lack of respect for the applicants rights.’105 While those opposed to the introduction of a right of access for LAs will no doubt disagree with the approach adopted by the ECtHR, it should reassure the Government that the right is a policy option that is compatible with the Convention. Moreover, it is one that arguably is required in order to comply with obligations under the UNCRC. As the law stands, however, with the absence of any clear guidance or recent and conclusive case-law, it is a matter of discretion for individual LAs to decide how to respond to a refusal to allow access. Moreover, the legitimacy and necessity of LA powers to have access to the home to see the child, to review the child’s work and to meet with the parents, will vary considerably depending on what precisely they are required to evaluate.

DEFINING SUITABLE EDUCATION Defining ‘efficient’ or ‘suitable’ education is a complex task. For while education can be understood as a developmental right and as a universally accepted ‘good’, 104 105

DCSF Guidance, at para 3.6. H v UK (Application No 10233/83 DR 105) (emphasis added).


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understandings as to what counts as ‘normal’ or ‘healthy’ child development are inevitably premised not on ‘neutral’ scientific calculations but on cultural, philosophical and political assumptions.106 There are parallels here with attempts to define what is in a child’s ‘best interests’ in family law proceedings. For while an efficient education is a fundamental right of the child and their ‘best interests’ are the paramount consideration of courts – this explicit focus on the child can mask the contingent nature of the definitions and the extent to which they are informed by the interests of others.107 The task for LAs is complicated by the fact that in disputes about home education they may wish to raise the threshold to be reached before an education can be deemed efficient but, in a different context, where parents are challenging the education being provided in maintained schools, the reverse is often the case. It is also important to remember that it is parental perceptions of the failure of schools to provide ‘efficient’ education that is increasingly one of the explanations for the increase in home education. In the context of proceedings brought by the state authorities under the Children Act 1989 to remove children from their home, the law implicitly recognises the fact that while the home environment may be far from ideal, the alternatives may be worse. There is, however, no equivalent formal acknowledgment of this in education law. Consequently, where the parent can not provide an efficient education the only formal legal option for an LA is to enforce attendance at school and choices here are, in practice, frequently very limited.108 Yet where home education is a response to unhappiness in school or failures by a school it may not always be possible for an alternative school place to be found and a range of support measures to assist home education may be more appropriate. The statutory definition of ‘efficient education’ is ‘full-time education suitable (a) to his age, ability and aptitude, and (b) to any special educational needs he may have’109. While the issue of SEN raises distinct issues beyond the remit of this article,110 an important general point about this definition is that it makes clear that the focus is on the needs of the individual child. Consequently, what is deemed efficient for one child might be inefficient for another. This individualistic approach creates a tension for policy makers. It implicitly requires respect for parental discretion and knowledge of their child, and consequently supports flexibility as to the form and content of educational provision. But it also legitimises closer monitoring by LAs, and controversially, contact with and assessment of individual children. In examining the extent to which these tensions are resolved by the limited case-law and DCSF Guidance, three distinct issues can be identified: curriculum and timetable; socialisation; and civic education.

Curriculum and timetable The guidance states that: ‘Home educating parents are not required to: teach the national curriculum; provide a broad and balanced education; have a timetable; have premises equipped to any particular standard; set hours during which education will take 106

V. Walkerdine, ‘Developmental psychology and the study of childhood’ in M.J. Kehily (ed), An Introduction to Childhood Studies (McGraw Hill, Open University Press, 2nd edn, 2009). 107 H. Reece, ‘The Paramountcy Principle: Consensus or Construct’ (1996) 49 Current Legal Problems 267–304. 108 N. Harris, Education, Law and Diversity (Hart Publishing, 2007), at pp 235–257. 109 110

Education Act 1996, s 7. See the DCSF Guidance at paras 3.17–3.23.


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place; have any specific qualifications; make detailed plans in advance; observe school hours, days or terms; give formal lessons, mark work done by their child; formally assess progress or set development objectives; reproduce school type peer group socialisation, match school, age-specific standards’.111 This flexible approach is perhaps surprising. Bainham and Harris both expressed the view that the introduction of the National Curriculum in 1988 would make it harder for parents to provide ‘efficient education’.112 However, in practice the prescriptive nature of the National Curriculum has had the opposite effect; providing another reason for parents to opt for home education. Authority for not following the curriculum stipulated by the government is provided by Bevan v Shears (1911).113 In that case the judge made an analogy between home education and sending a child to an independent school. However the relevance of this argument now is questionable, for while independent schools are not required to comply with the National Curriculum, the increased regulation of that sector extends to imposing compliance with quite detailed curriculum requirements.114 While recognising that there are ‘many, equally valid approaches to educational provision’115 the guidance does, however, advise that: ‘LEAs may reasonably expect the provision to include the following characteristics: 1. Consistent involvement of parents or other significant carers – it is expected that parents or significant carers would play a substantial role, although not necessarily constantly or actively involved in providing education; 2. Opportunities for the child to be stimulated by their learning experiences; and 3. Access to resources/materials required to provide home education for the child – such as paper and pens, books and libraries, arts and crafts materials, physical activity, ICT and the opportunity for appropriate interaction with other children and other adults.’116 The first expectation arguably represents an attempt to distinguish genuine home educators from parents condoning truancy and complements the increased focus on children missing education.117 But overall what is striking is the absence of clear requirements, creating the impression that the role of the LAs is simply to make sure that the parents are ‘genuine’. It is a matter of concern to some LAs that parents who are simply encouraging or condoning school absence for non-educational purposes might be able to claim that 111

Ibid, at para 3.13. A. Bainham, Children, The Modern Law (Jordans, 2nd edn, 2005), at p 542. N Harris, Law and Education: Regulation, Consumerism and the Educational System (Sweet and Maxwell, 1993), at p 209. 113 Bevan v Shears (1911) 2 KB 936; 80 LJKB 1325. See D. Monk, ‘Problematising Home Education: Challenging “Parental Rights” and “Socialisation” ’, (2004) 24 (4) Legal Studies 568–598 for a more detailed reading of this case. 114 Education Act 2002, s 157 (1); The Education (Independent School Standards) (England) Regulations 2003 (SI 2003/1910). 115 DCSF Guidance, at para 3.14. 116 Ibid, at para 3.15 (emphasis added). 117 This was clearer in the previous draft guidance which, mirroring the Scottish guidance, advised that in addition parents should be able to demonstrate the ‘presence of a philosophy or ethos’ and ‘signs of commitment and enthusiasm’: Draft guidance (2005) at para 3.15 (copy with author) and Scots at para 5.5. 112


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they support the ethos and philosophy of autonomous, self-directed education. This issue was examined in the high profile case of Harrison and Harrison v Stevenson (1982).118 The facts of the case are complex but in this context it is the decision of the Court of Appeal that is significant as it provides definitions of efficient education that have a general application. The court made clear that: ‘At the very outset, we would distinguish the Appellants’ case from the situation of those parents indifferent to education who allow their children to play truant on the specious excuse that they will learn as much at home as at school’. But while it accepted that autonomous learning was recognised by educationalists as legitimate, the court added that: ‘[B]e that as it may, in our judgment “education” demands at least an element of supervision; merely to allow a child to follow its own devices in the hope that it will acquire knowledge by imitation, experiment or experience in its own way and in its own good time is neither systematic nor instructive . . . such a course would not be education but, at best, child-minding.’ The court defined ‘education’ as: ‘the development of mental powers and character and the acquisition of knowledge through the imparting of skills and learning by systematic instruction’, and ‘systematic’ as something that, ‘achieves that which it sets out to achieve’. The judgment then made the important further stipulation that efficient education must be ‘such as to prepare the children for life in modern civilised society and enable them to achieve their full potential’. In elaborating on this the court held that: ‘We regard the fundamental academic skills of writing, reading and arithmetic as fundamental to any education for life in the modern world . . . essential for communication, research or self-education . . . we should not, in the ordinary case, regard a system of education as suitable for any child capable of learning such skills, if it failed to instill in the child the ability to read, write or cope with arithmetical problems, leaving it to time, chance, and the inclination of the child to determine whether – if ever – the child eventually achieved even elementary proficiency in those skills’ (emphasis in the original). While the court recognised that in this case the fact that the children had dyslexia meant that they could not be expected to read or write until comparatively late and indeed that ‘some never do’, they were not satisfied that the education for the two youngest children satisfactorily addressed their development of reading and writing skills. The implication of this decision is that ‘efficient’ education should include a systematic approach to the learning of basic skills of reading, writing and numeracy. This does not contradict the assertion in the DCSF Guidance that home education does not need to ‘teach the national curriculum,’ as these basic skills are merely aspects of syllabus and curriculum. Nor, as the decision in Harrison makes clear, does it preclude autonomous learning as a legitimate form of education. But unlike the 118

Harrison and Harrison v Stevenson (1982) QB (DC) 729/81. At the ECtHR cited as H v UK (Application No 10233/83 DR 105). It was a subject of a documentary: ‘The Harrisons Don’t Go to School’ Forty Minutes (BBC, 1981). For a detailed discussion see R. Meighan, ‘Home based educators and education authorities: the attempt to maintain a mythology’ (1984) 10(3) Educational Studies 273–86 (who acted as their expert witness).


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guidance, the case elaborates the meaning of ‘efficient’ by stipulating a positive expectation and requirement. In doing so it, arguably, legitimises the necessity of access to a child’s work and evidence of progress.119 In practice some LAs adopt this interpretation when evaluating home education; but this positive requirement is rarely publicised. One possible reason for this, and the fact that the guidance makes no reference to basic skills in its definition of ‘efficient’, is that it might open the gates to negligence actions from children leaving mainstream school without these skills. As levels of illiteracy attest, this is not an insignificant number. A further positive elaboration as to the meaning of ‘efficient education’ is provided by the statutory requirement that it be ‘full-time’. On this point the DCSF Guidance states that: ‘There is currently no legal definition of “full-time”. Children normally attend school for between 22 and 25 hours a week for 38 weeks of the year, but this measurement of “contact time” is not relevant to home education where there is often almost continuous one-to-one contact and where education takes place outside “normal school hours”.120 In 2006 the DCSF launched a consultation into the ‘Definition of Full Time Education in Independent Schools’.121 The aim of the consultation was to ‘remove any doubt as to what constitutes full time education’ and to, ‘ensure that any settings providing all, or a major part, of children’s education will be registered, and required to meet the minimum regulatory standards. This will ensure that children are taught effectively, in a safe and secure environment’ (emphasis added). Home educators formed the majority of respondents to the consultation and expressed concern that they might be obliged to comply with requirements relating to independent schools and that, in effect, the initiative would introduce compulsory registration.122 The manner in which forthcoming regulations under the Education and Skills Act 2008 defines non-school based educational settings will be critical here.

Socialisation Concerns about inter-personal development, generally referred to under the label ‘socialisation’, are frequently made about home education.123 Home educators strongly refute these concerns as unfounded negative assumptions. The most detailed review of the research in the USA is provided by Medlin, and while he acknowledges the weaknesses in the methodology of much of the research, he argues that home educated children participate in more activities of their wider communities than schooled children and grow up to be functional and happy in their chosen lives.124 There is no clear evidence to refute this research, rather, the assumed socialisation 119

In Harrison the court rejected the argument that it was ‘degrading for one human being to assess another’, describing that view as ‘hyper-sensitive’ and ‘unreasonable’. 120 DCSF Guidance, at (para 3.13). 121 The consultation was closed in February 2007 and the response is available at: http://www.dcsf.gov.uk/ consultations/downloadableDocs/FTE%20Response.doc 122 Note also that an independent school was redefined as five or more pupils of compulsory school age or at least one pupil of that age with a statement of a special educational need: Education Act 1996, s 436(1) as substituted by the Education Act 2002, s 172). 123 For a more extensive analysis of this issue, see D. Monk ‘Problematising Home Education: Challenging “Parental Rights” and “Socialisation” ’, (2004) 24(4) Legal Studies 568–598. 124 R.G. Medlin, ‘Home Schooling and the Question of Socialization’, (2000) 75(1) and (2) Peabody Journal of Education 107–123.


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benefits of schooling take the form of a ‘common-sense’ knowledge – something that is beyond questioning, an a priori truth. Yet the basis of this ‘truth’ arguably stems from the fact that mass school attendance, while a relatively recent phenomenon in western countries, and globally still far from universal, is perceived as an almost essential component of the experience of childhood. The largely unquestioned assumptions about the benefits of schooling attest to what Hendrick describes as the ‘self-confidence and tenacity of contemporary western notions of childhood’.125 It is this premise that underlies assertions of the existence of a ‘right to school life’, for as the critical theorist Erica Burman argues, ‘childhood becomes an entity, the deprivation of which constitutes a violation of human rights’126. Within this cultural paradigm home education is a label that does not simply describe an alternative form of education but, rather, a practice that robs a child of childhood. One issue that is often absent from this discussion is the subject of bullying. Yet the fact that this is a significant motivation for many home educators highlights the potential negative aspects of school based socialisation. The issue of bullying is particularly significant from a legal perspective; in a number of cases parents have equated a perceived failure to adequately address the issue with a breach of an LA’s duty to provide ‘sufficient’ education (as well as a ground for negligence claims).127 Yet while the guidance to LAs refers to ‘the opportunity for appropriate interaction with other children’ as an aspect of parental provision that LAs ‘may reasonably expect’ (para 3.15) the extent to which socialisation – however understood – forms part of ‘efficient’ education is far from clear. In this respect it is significant that while the Education Act 2002 requires the Secretary of State, LAs, governing bodies and head teachers (for independent as well as maintained schools), to ensure that the curriculum ‘promotes the spiritual, moral, cultural, mental and physical development of pupils at the school and of society; and prepares pupils for the opportunities, responsibilities and experiences of later life’128 this broad duty does not apply to parents or to LAs in relation to monitoring home education.129 Moreover, the House of Lords held in a case relating to exclusions that a regime that kept a pupil in almost complete physical isolation from all staff and other pupils of the school was acceptable.130 Yet the reference to the needs ‘of society’, indicates that broad understandings of child development and socialisation have implications that go beyond the individual child.131

Civic education The extent to which ‘efficient’ education should include some form of civic education is a multi-faceted issue. As debates about the inclusion and remit of citizenship lessons 125

H. Hendrick, ‘Constructions and Reconstructions of British Childhood: An Interpretative Survey, 1800 to the Present’ in A. James and A. Prout (eds), Constructing and Reconstructing Childhood (RoutledgeFalmer, 2nd edn, 1997), at p 34. 126 E. Burman, ‘Innocents abroad: Western fantasies of childhood and the iconography of emergencies’ (1994) 18 Disasters 238, at p 242. 127 See ‘Pupil Bullying, Mental Health and the Law in England’, in N. Harris and P. Meredith (eds), Children, Education and Health – International Perspectives on Law and Policy (Ashgate, 2005), at pp 31–58. 128 Education Act 2002, ss 78, 79, 99(1), 157(1). 129

Education Act 1996, s 351(3). R (L) v Governors of J School [2003] UKHL 9, [2003] 1 All ER 1012. According to L’s counsel the regime treated him as, ‘a social and educational pariah’ and compared it to, ‘a correspondence course in prison’(ibid, at 1035e). For a detailed analysis see D. Monk ‘Undermining Authority? Challenging School Exclusions and the Problems of Reinstatement’, [2004] CFLQ 16, at pp 87–102. 131 These words were inserted by the Education Reform Act 1988, s 1. 130


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within the National Curriculum demonstrate132, civic education touches upon complex political questions about the meanings, uses and limits of cultural, group and children’s rights and highlights the inherent and, some might say, intractable tensions within liberal political theory. Notwithstanding this, some form of civic education is clearly envisaged and required by the UNCRC as Art 29 states that education should: ‘[E]ncourage children to respect others, human rights and their own and other cultures. It should also help them to learn to live peacefully, protect the environment and respect other people’. With the introduction of citizenship lessons in maintained schools and comparable, albeit less prescribed, requirements for independent schools,133 the absence of any requirement for home educators to address this is, arguably, at best problematic. Moreover, the fact that the DCSF Guidance states explicitly that a ‘broad and balanced education’ is not required,134 condones the possibility that home educators may have political or religious views that conflict with dominant, broadly liberal, democratic views. At the same time, the expectation that home education should provide ‘the opportunity for appropriate interaction with other children’,135 alongside the more explicit reference to ‘socialisation’ could be interpreted more broadly to encourage interaction with others in order to support community cohesion. Support for just such interaction was demonstrated in the parliamentary debates about faith schools, in the context of proposals, subsequently rejected, that they should include a percentage of pupils from other or no faiths.136 In this context, home education raises two concerns. First, it is arguable that unregulated home education implicitly condones education that conflicts with attempts to foster national cohesion and democratic values. Secondly, there is the view that home educated children, ‘cut off’ or ‘withdrawn’ from mainstream society, will in effect be denied an education that respects their individual rights to develop their own views and values. The two concerns are linked in that failure to counter the latter, in the long term, arguably undermines the aim of the former. A key case here is R (Talmud Torah Machzikei Hadass School Trust) v Secretary of State for Education and Science.137 This did not concern home education but the adequacy of the curriculum of an independent orthodox Jewish school. In a much quoted judgment, Woolf J, as he then was, defined a ‘suitable’ education as one that: ‘… primarily equips a child for life within the community of which he is a member, rather than the way of life in the country as a whole, as long as it does not foreclose the child’s options in later years to adopt some other form of life if he wishes to do so.’ 132

I. Davies, M. Evans, A. Reid, ‘Globalising Citizenship Education? A critique of “Global Education” and “Citizenship Education” (2005) 53(1) British Journal of Educational Studies 66–89; A. Osler (ed), Citizenship and Democracy in Schools: Diversity, identity, equality (Trentham, 2000); M. Olssen, ‘From the Crick Report to the Parekh Report: multiculturalism, cultural difference and democracy – the re-visioning of citizenship education’ (2004) 25(2) British Journal of Sociology of Education 179–192. 133 The Education (Independent School Standards) (England) Regulations 2003 (SI 2003/1910), Sch, para 2. 134 DCSF Guidance, at para 3.13. 135 Ibid, at para 3.15. 136 137

See Hansard, Lords Debates, col 37 (30 Oct 2006). R (Talmud Torah Machzikei Hadass School Trust) v Secretary of State for Education and Science (1985) The Times, 12 April.


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The ‘condition’ in the last line represents an attempt at balancing the rights of parents and children. This arguably coheres with Art 29 of the UNCRC, which also states that ‘education should aim to develop respect for the values and culture of their parents’ and Art 30, that ‘children and young people from minority communities must not be stopped from enjoying their own culture, religion and language’. The judgment represents a compromise recognised by a number of commentators. For example, Paul Hirst, the late distinguished political theorist, argued that: ‘The key right that a pluralist state, based as it is on voluntary associations, would have to enforce and that would involve conflict with many groups is the right of exit’.138 While an adult’s ‘right to exit’ from the community from which one is brought up in is, as Hirst indicates, not without its critics, it is widely accepted as fundamental within a democratic liberal society. Yet despite this broad acceptance, it is unclear what the implications are for children; first, regarding their ability to exercise choice while still a child, and secondly, regarding the education necessary to ensure that they have the capacity to exercise the ‘right to exit’ on becoming an adult. With regard to the former, the extent to which children’s autonomy is effectively silenced in discourses of education is well documented.139 With respect to the latter, the US educational political theorist Rob Reich argues that enabling children to be ‘minimally autonomous’ protects them from ‘ethical servility’, and as such is both in the public interest and a right of the child, and consequently that: ‘[T]he state must ensure that all children, regardless of the environment in which they are schooled, receive an education that exposes them to and engages them with values and beliefs other than those they find at home.’140 This is an approach that coheres with John Eekelaar’s view that a developmental right ‘includes preparation for the exercise of autonomy’141. This ‘liberal’ compromise conflicts with the concerns of religious conservative home educators in the US. For, as Thomas Washburne, the Director of the National Centre for Home Education points out: ‘Many religions, and especially Christianity, necessitate the teaching of truth. Not, “This is my truth”, but “true truth”. There is no room for relativism’.142 The reference to ‘relativism’ is significant as it demonstrates the extent to which the liberal settlement poses problems for radical advocates of multi-cultural politics as well as for religious conservatives. Yet, as Hirst points out, it also poses problems for ‘liberals’ themselves. Indeed, his minimal approach is informed by an awareness of 138

P. Hirst ‘J.N. Figgis, Churches and the State’, (2000) The Political Quarterly 104–120, at p 117 (emphasis in the original). 139 D. Monk, ‘Children’s rights in education: making sense of contradictions’ [2002] CFLQ 45. As a result it is questionable whether children’s treatment in schools complies with UNCRC Art 12 anymore than does home education. 140 R. Reich, Bridging Liberalism and Multiculturalism in American Education (Chicago University Press, 2002), at p 32. See also W. Kymlicka, ‘Education for Citizenship’ in J M Halstead and T H McLaughlin (eds), Education in Morality (Routledge, 1999). 141 J. Eekelaar, Family Law and Personal Life (Oxford University Press, 2006), at p 156 (emphasis added). 142 ‘The Boundaries of Parental Authority: A Response to Rob Reich’, available at: http://www.hslda.org/docs/nche/000010/200204230.asp.


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how ‘[e]mbattled defenders of liberalism often thicken the doctrine to the point where it becomes prescriptive and exclusive rather than neutral and procedural’.143 Similarly, Wendy Brown asks: ‘What kind of attachments to unfreedom can be discerned in contemporary political formations ostensibly concerned with emancipation’?144 However, Eekelaar reconciles limited ‘prescriptive’ intervention with the interests of an ‘open society’ by suggesting that support for diversity is not for diversity per se, but rather that: ‘[T]he point about respect for difference is that the common attributes of humanity should be valued irrespective of cultural (etc) difference. What is then valued is the ability to choose the variety of ways in which culture gives expression to the human goods, rather than the fact of difference itself.’145 Eekelaar’s position, however, opens itself to criticism by critical theorists for whom the valourising of ‘choice’ is deeply problematic, relying as it does on the ‘liberal myth’ of the possibility of a truly autonomous subject.146 The above discussion merely hints at the underlying complexity of the theoretical issues. Moreover, if some form of ‘civic education’ is deemed an essential requirement for ‘efficient’ education, it is not clear what this would entail, and still less how an LA might evaluate compliance. As Reich acknowledges, ‘the empirical measurement of autonomy, especially in children’ would be ‘an exceptionally difficult and probably quixotic quest’.147 At a minimum it would require basic literacy. While some might consider this too low a threshold, it is salutary to remember that one of the historical concerns about the provision of universal elementary schooling was that it would enable the working classes to read not just the bible but revolutionary texts.148 The nineteenth century debates about education reveal that reforms in education have always been informed by a complex concatenation of pragmatic economic and political considerations and this pattern continues. Consequently it is unlikely that policy development in this area will reflect a coherent theoretical standpoint but will develop in an ad hoc contingent fashion. Such a pragmatic response can also be identified in the judgments of the US Supreme Court and the ECtHR in the well known and influential education cases of Yoder,149 Mozart150 and Kjeldsen.151 While none of these cases concerned home education they all address the tension between cultural pluralism and civic education, broadly defined.152 In Yoder, the Supreme Court upheld the right of the Amish community not to send their children to school beyond the eighth grade (ages 14–15). An important factor for 143 144 145 146

P. Hirst ‘J.N. Figgis, Churches and the State’, (2000) The Political Quarterly, 104–120, at p 104. W. Brown, States of Injury: Power and Freedom in Late Modernity (Princeton, 1995), at p 71. J. Eekelaar Family Law and Personal Life (Oxford University Press, 2006), at p 81. C Douzinas, The End of Human Rights (Hart Publishing, 2000).

147

R. Reich, Bridging Liberalism and Multiculturalism in American Education (Chicago University Press, 2002), at pp 28–29. For a similar argument see M. Olssen, ‘From the Crick Report to the Parekh Report: multiculturalism, cultural difference and democracy – the re-visioning of citizenship education’ (2004) 25(2) British Journal of Sociology of Education 179–192. 148 J. Murphy, The Education Act 1870 (David and Charles, 1972) 149 150 151 152

Wisconsin v Yoder 406 US 205 (1972). Mozart v Hawkins County Board of Education 827 F.2d.1058 (1987). Kjeldsen, Busk Madsen and Pedersen v Denmark (1976) 1 EHRR 711. For a detailed discussion of these cases see N. Harris, Education, Law and Diversity (Hart Publishing, 2007), at pp 391–395.


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the Supreme Court, noted by Burger CJ, was that the Amish community was a ‘highly successful unit’ and its members were ‘productive and law-abiding’. This highly pragmatic response to a large extent coheres with and explains why, to date, the DCSF and successive governments have chosen to largely condone home education. Put simply, these individuals, neither the parents nor the children, have posed, or been perceived to pose, any economic or political problem for society as a whole. That the government appears now to be reconsidering this status quo can similarly be explained by concerns about Islamic fundamentalism, parallel communities and social exclusion more generally and the possibility that groups perceived as being potentially not ‘law-abiding’ could take advantage of the legal ‘anomaly’ of home education.153 Similar reasoning applies to debates about faith-based schools, where it is largely the issue of new Islamic schools that has provoked unease and calls for regulation. Yet similar concerns could be leveled against independent schools generally, for here too ‘choice’ and ‘diversity’ arguably conflict with social cohesion. Indeed, the current political and popular focus on culture and religion is for some indicative of a broader failure to address issues of social class. Schooling per se consequently provides no guarantee of a civic education in its broadest sense and it is precisely the failure of schools to address this that motivates many home educators. The US Supreme Court decision in Mozart and that of the ECtHR in Kjeldsen are both cases where the courts rejected parental rights claims; the former in relation to objections over secular material and the latter, compulsory sex education. Consequently they are relevant to the question as to whether a state can legitimately impose civic education on home educators. However, in both cases the courts referred to the possibility of home education as one of the reasons that legitimised state control over the content of educational provision within public schools. These arguments are important as they indicate that adopting a different approach to home education and schools (faith-based, independent or maintained) creates pragmatic opportunities as much as problematic anomalies. In other words, the government may choose not to proscribe civic education for home education, not, primarily, to respect parental rights but, rather, in order to defend the legality of a more extensive form of citizenship education in schools.154

CONCLUSION In Phillips v Brown, Donaldson J held that where LAs have a duty to act they should not behave like an ostrich – putting its head in the sand ‘in order that it should not learn of anything which might place upon it the burden of discharging its duty’.155 While this may be the approach adopted by some LAs, sometimes simply because of lack of resources, for many it is the exact nature of their legal duties that gives rise to confusion. Domestic and international law, in particular the UNCRC, all emphasise that the child’s right to education is fundamental and make clear that taking the ostrich approach would represent the state’s failure to comply with its own obligations to fulfil such a right. Moreover, while the law recognises the importance of respecting parents’ views, parents must also recognise that their children have rights independent of their own. It follows that parents who choose to home educate must acknowledge the legitimate interest of LAs, acting as the agents of the state, to monitor their provision. 153

An example of this are concerns that home education is being used to keep young girls destined for forced marriages out of the attention of authorities: (2009) 12 Home Education 5. 154 Such an approach can be seen in the context of the parental right to withdraw children from sex education, see D. Monk, ‘Children’s rights in education: making sense of contradictions’ [2002] CFLQ 45. 155 Phillips v Brown (unreported transcript 424/78 QB (DC)) 20 June 1980.


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Parents who home educate are not simply performing a private duty but also a public function. For all these reasons the case for compulsory registration is logical, legitimate and compelling. But it is important to emphasise that this argument in no way suggests that home education, per se, is in any way less valid than school attendance. Both are equally capable of providing, or failing to provide, ‘efficient education’ – however this is defined. Compulsory registration alone would not adequately clarify the role of LAs and parents. Clearer guidance, arguably more than new statutory powers, are required to reassure LAs that access to the child and to the home are not simply legitimate requests. For it is hard to see how an LA can comply with its duties without seeing the child – whether these duties are premised on the educational or welfare needs of the child. Attempts to distinguish the two may impose a restrictive and artificial view of child development. The manner in which LAs carry out their duties is, of course, crucial and the current DCSF Guidance rightly emphasises the importance of developing supportive engagements with parents. In this respect much can be learned from good practice in various parts of the country. For this to be possible, however, adequate resources are required. There are grounds for asserting that where parents opt to home educate it should not create an additional burden on already overstretched LA education budgets. But, equally, one can argue that the corollary of requiring parents to acknowledge the public function of education is that the state accepts its own financial responsibilities. Indeed, in a context of increased support for diversity in education, increasing numbers of faith schools and state regulation of independent education more generally, one of the anomalies of home education is its current lack of publicly funded support. Such dilemmas make clear that home education can not be considered in isolation of broader political agendas. This is most acute in the context of defining ‘efficient education’. Making clear that this should include basic skills, as a minimum, is important and should be stated in new guidance. But civic education is far more problematic, both in theory and in practice. In this respect, home education poses not simply administrative problems but raises questions about both the meaning and purpose of education in a society based on liberal democratic principles and the role of the child in that process. The recent consultation process and forthcoming review may reflect the Government’s desire to resolve some of these issues. Alternatively it may, as is sometimes the case, simply be a way of forestalling making difficult decisions. If so, it may result in a continuation of the present situation, whereby the drawing of difficult lines is left to LAs and home educators – to negotiate in a localised, diverse and ad hoc fashion. Such an approach would be unsatisfactory given that home education is not just increasing but a phenomenon that has been described as a ‘quiet revolution’. The way in which it is perceived and regulated indicates how society views not only those engaged in the process, but also itself.


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