Wednesday, 9 December 2009

A Lawyer's POV

Following on from the monopoly post, here is how a lawyer breaks down the proposed CSF Bill:

Summary of the Bill’s Violations of the Right to Home Educate and Human Rights, and Sheer Illogic and Inequity

The right of parents to
home educate their children is established under Section 7 of EA 1996. In fact, Section 7 puts the
responsibility to provide education to children upon the parent, notthe

The parent of every child
of compulsory school age shall cause him to receive efficient full-time
education suitable to
(a) his age, ability and
aptitude, and
(b) to any special
educational needs he may have,
either by regular
attendance at school or otherwise.

The parenthas the
obligation to secure the child’s education, and the right to provide that
education at home. The parent can
choose to delegatethe provision of their child’s education to a
school. The Bill treats the law
as the opposite, as if it were the authority’s right to choose whether a
parent can provide their child’s education otherwise than at school

Bill imposes no direct duty upon parents to register their home educated
children with the authority. It
gives the authority a duty to maintain a register of EHE children. Nonetheless the Bill provides that,
ultimately, parents will be held criminally liable if their child is not shown
on the register and they continue to home educate.

Use of the term
“registration” in the Bill is a misnomer and inaccurate terminology. The term to “register” implies a
ministerial task of making an entry in a register; “to record automatically”
according to Merriam-Webster online. “Registration” as set forth in the Bill is in fact a
requirement that parents receive permissionfrom their authority in
order to exercise their Section 7 right to home educate.

While the parent has no
obligation to register, as soon as the authority learns of an unregistered EHE
child, it can serve a school attendance order (SAO) with respect to that child.
The authority has no obligation to try to get a child registered, or to make
any inquiries about the child’s education, before serving the SAO.

An application to register
does not automatically ensure a place on the register. The authority has
discretion to refuse or revoke registration for many reasons that have nothing
to do with whether or not the education is suitable.

The Bill empowers authorities to refuse
· if the authority thinks the
parents violated specific requirements for providing information to the
authority, to include an educational plan for the forthcoming year;
· if the
authority thinks the parents made it too difficult for the authority to monitor;
· if the
parents provided wholly accurate and adequate information but circumstances
changed; or
· if the
parents did not adhere to an education plan they projected for the forthcoming
year, even if the education they provided was as good as or better than the
plan proposed.

An authority can therefore refuse to
register an EHE child, then serve an SAO because the child is not registered.

An authority can issue an
SAO because a child is not registered. And it can deny registration because there is an outstanding SAO.

Once an authority has
refused a parent’s application to register, the authority has the power to
refuse anyor all further
applications from that parent, just because they were refused in the past.

Regulations will prohibit
parents from filing another application to register within a certain time period, with
the same or any other authority, unless the authority decides circumstances
have changed sufficiently.

The Bill not only gives
the authority substantial leeway to prevent parents from home educating, it
also removes all prospect of judicial review with respect to whether elective
home education provided by parents is suitable-- whether the home
education is in accordance with the legal standard that assures the right to
home educate.

The only thing a court can
consider with respect to an EHE child is whether or not the child is listed on
the authority’s register of home educated children. The court may notconsider anything about the
child’s actual education in an enforcement proceeding upon an SAO issued by an
authority. If the child is not
registered, or was refused registration by the authority, an SAO will be
enforced, and if a parent refuses to comply with to the order, the parent will
be guilty of a criminal offence.

Each year, the authority
must meet at least once with every home educated child, with the parent, and
with any other adult who may have primary responsibility for the
education, giving two weeks' notice. The authority must make at least one
visit to "the place (or at least one of the places)" where education
is provided. The bill does not specify the home, but nor does it specify
who decides where a visit takes place. If a parent suggests meeting
outside the home, the authority might also demand a home visit. If the
parent refuses a home visit, the authority may revoke registration, because it
has power to revoke registration if the parent "fails to co-operate with
the authority in [monitoring] arrangements made by them."

Huge controversy arose
from the suggestion in the Badman Report that authorities be granted the power
to question children apart from their parent or carer. Nonetheless the Bill suggests that
authorities interview children without the parent or carer present. The Bill includes a token gesture of
protection, providing that such meetings should not take place if the parent or
child objects. Yet the Bill
empowers the authority to use the very fact that an objection was made to
revoke the registration of the child, and thereafter enter an SAO, if the
authority thinks that without the interview it is difficult to ascertain the
child’s feelings on the home education or the child’s educational achievements.
This position would be almost impossible to disprove, especially given the
evident bias in the Bill and in the Badman Report against trusting the parent,
and prioritising the government’s view over the parent’s.

With huge thanks to Betsy for sharing.


  1. The parental choice to educate a child at school or otherwise was established within section 36 of the 1944 Education Act. The 1996 act was a consolidating act. Neither makes any mention of "home education". Lawyers eh!

  2. There is also some vague wording about schools testing children to establish the starting point that can be used to measure their yearly progress. It is in the context of deregistering, but I think the wording may leave it open to mean testing children who have not previously been schooled, and retesting yearly. I think it opens the door for our children to all be SAT tested yearly! I'm hoping I'm wrong, but I think it is just a missing 'the' (article) that makes it possible to apply it more widely to home educated children. I think that is the Government's intention all along and they are going to squeeze it in with this skeleton of a piece of law that has to be padded out by regulations in future. Watch that space.
    Won't it be crazy if we end up with yearly SATs when they are proposing fewer SATs in schools because of the impact of them on children.
    They are cruel. We know that from reading the catch 22s they are putting in there, and how they have made it more punitive each time we complain, by appearing to address our issues whilst tightening their death grip. It is like being in the grip of a boa constrictor.

    I'll never again be skeptical about how cruel and underhand the Government is.

  3. Can you explain how that is relevant to the main problem at hand, Duncan?

  4. We love Betsy.......she has worked so hard on this. You should see the document that this is the summary of!! It will be published soon.....

  5. Merely pointing out the factual inaccuracies in a positive, constructive and supportive kind of way. It depends on the individuals point of view as to what actually is the main problem at hand.