Have councils in Wales handled legislation on EHE appropriately to date?
At present there is no specific primary legislation in force regarding home education.
This is because home education is the default setting,
and because education,
wherever the child may receive it, and whoever they receive it from,
is always the responsibility of the parent, not the state or a school.
(This is why parents cannot sue a school, council, or government for inadequacies in schools- and we’re not sure they have thought through the consequences of assuming they should be the ones responsible for suitability of education, in terms of the liability that would bring for when their educational provision is not suitable).
Therefore, councils seeking to take measures or actions regarding home educators have historically relied on S436A and S437 of the Education Act 1996, and interpretations of selected case law.
It is worth noting that when the 1996 Education Act was being drafted and progressed through Parliament, home educators were assured that those two sections would only apply to children missing education and not to home educators.
It is, however, sadly not unusual to hear councils or others misinterpreting, misquoting, or misapplying case law that applies to home education.
For example:
Harrison and Harrison v Stevenson appeal 1981, Worcester Crown Court (unreported)
The Judge defined the outcomes of a suitable education as:
to prepare the children for life in a modern civilised society;
and to enable them to achieve their full potential
The 2023 Welsh Government (WG) guidance on EHE, and some councils in Wales in their policies and documentation on EHE, cite the following:
In Harrison & Harrison V Stevenson, the judge defined the outcomes of a suitable education as: ‘In our judgement 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. 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 instil 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’.
When referencing the case of Harrison & Harrison v Stevenson [1982] (QB (DC) 729/81, there are several points to consider.
Unfortunately, this quote is sometimes used in an attempt to create some form of benchmark for expected “standards” or to influence choices of approach to home education.
This case can sometimes be quoted in a way that can read as an attempt to justify personal opinions of child-led learning (be that “unschooling” or child-focused learning) being inappropriate modes of education.
However, the case actually supports the use by home educators of a wide and diverse range of pedagogy, Harrison and Harrison v Stephenson actually helps clarify that there is not one “correct” educational system or approach.
That case is also taken as clarifying the meaning of terms previously used in the 1944 Education Act, i.e. of “suitable” meaning one which enables a child to achieve their full potential preparing them for life in modern civilised society, and the term “efficient” as achieving that which it sets out to achieve.
Clearly, these definitions cover a great variety of educational approaches.
Any references to that case must also bear in mind that this was before the Education Act of 1996.
The Education Act of 1996 does not undermine the very broad understanding of suitability but critically clarifies that it is the parent who is responsible for education not the state, which includes the style and mode of education, and where the only lawful duty of the LA that intersects with the that duty of parents who have chosen to home educate their children being what to do “if it appears” that a child is actually one who is missing education rather than being home educated.
In addition, the case of Harrison vs Harrison of 1981-1982 was prior to the Education Reform Act of 1988. That Act brought not only the establishment of the National Curriculum for children attending state schools, with the associated expected standards for school-based education but also repeated clarification from the Department for Education that neither the curriculum nor the associated expected levels of attainment apply to home educated children. Therefore, the two cannot be compared in terms of what skills are to be “expected” by a given age.
The case of Harrison and Harrison was also prior to human rights and other critical components of civil right laws such as data protection legislation, which further protect family rights in the choices made for and by children, including in relation to their education.
Therefore, it is not appropriate to use the Harrison v Harrison case of 1982 in relation to any attempts to justify personal opinions on child-led education, outside of an appreciation of how the understanding and appreciation of child led and child focused approaches to education have developed considerably over time.
It is also vitally important to appreciate that child-led and child-focused approaches are not the same thing as abandoning a child completely to their own devices without adult engagement.
If the reader is interested in exploring the values of such learning further, the work of Dr Harriet Patterson on the wide age ranges over which the skill of reading can successfully emerge as well as the considerable benefits of child-led approaches to learning to read could be a helpful initial area of consideration.
It is fundamental to appreciate that when a child acquires such skills can follow a very different time frame for home educated children than is attempted to be achieved in school-based education, especially when child-led approaches are taken.
The two cannot be measured and compared using the same criteria or expectations.
It is also vital to appreciate that child-led learning is an extremely common and appropriate form of elective home education, one that provides a vital alternative to school-based pedagogy.
Whilst it is for parents to decide on the most appropriate approach to education, and child-led styles of education are beneficial to all children, these approaches are especially helpful for children where school-based approaches have already failed and/or where there are additional needs.
It is thus vital for councils and governments to appreciate not only the benefits of these styles of education and learning, but how the developmental trajectory and the outworking of these approaches looks very different to those anticipated by school-like approaches, and that therefore there cannot be the reasonable expectation of seeing the same outcomes at the same times.
Philips v Brown 1980
Some councils in Wales have been noted to cite this case law, including statements such as:
“While parents are under no legal obligation to meet with a representative of the LA or engage in discussing their child’s education, Lord Donaldson has stated that:
‘…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 LA will have to consider and decide whether it ‘appears’ to it that the parents are in breach of Section 437(1) of the Education Act 1996’
Clear analysis of this ruling, including Lord Donaldson’s actual wording can be found here:
Key points to consider on the inappropriate use of such quotes from this case law include:
(1) This case referred to situations where the council had no previous contact from the family and do not know the educational status (whether the child is home educated or not). It was not considering situations where councils have previously received information from the family about their provision, where it has already been established that the child is EHE not CME.
(2) Of particular relevance to the way this quote can be misused in government and council documentation,
Lord Donaldson’s statement relates to engaging with the local council but does not refer to meeting in person.
However, the phrasing in such statements in Welsh council policies produces an inappropriate conflation between not responding to an initial enquiry about provision and declining the invitation to a meeting.
It is vital to note that the Welsh government have clarified that meetings are not mandatory. Indeed, the concept of parents and “Gillick competent children” being free to decline these demonstrates that the key principles behind any such meetings must be fully informed consent.
For consent to be true consent, it must not be coerced or obtained under any threat or suspicion of adverse outcomes for not agreeing to go along with a proposed behaviour or action.
So, it is vital that families are reassured of their lawful right to respond to enquiries from the local authority in whatever manner they should choose, without fear of negative repercussions for declining the “offer” of a meeting.
Any offer of a meeting or visit must clearly be seen to be just that, an “offer”.
However, sadly, research is about to be published that demonstrates that councils in Wales very commonly behave otherwise.
For example, if a department were to write to home educators announcing or proposing a visit or meeting, as if this is happening, with the only “options” stated being to contact if need to arrange a different time or location, that would be very misleading to families by giving the impression that such a meeting or visit is some form of requirement.
This is because meetings and visits cannot be mandated and legal proceedings cannot and should not be issued against families for choosing to communicate via different means.
It would also be poor practice to do so from the point of view of any attempts to build trust in or respect for a council department or employee.
The aim of communications should be to establish the identities of children missing education, including by confirming that EHE children are not in that category and therefore not under the council’s remit,
not as tools of control or compliance to force or coerce particular ways of communicating information.
(3) A further point regarding Lord Donaldson’s ruling that is also often overlooked is that he drew a clear distinction between informal enquiries (presently under S436A of the Education Act 1996) and formal ones (now under S437). Note his statement:
“of course such a request [for information from parents] is not the same as a notice under s 37(1) of the Education Act 1944 [now s.437 Education Act 1996]
However, there is an increasing and inappropriate conflation between the two in policies produced by Welsh councils, with policies, documentation and conduct demonstrating an incorrectly placed expectation of being “satisfied” at the level of informal enquiries, rather than these being more appropriately a preliminary step to only consider “if it appears” education is not being provided. This incorrect conflation appears to be propagated by the terminology in the 2023 Welsh Government guidance on EHE.
This conflation will be explored more fully in further research, to be published shortly.
Goodred v Portsmouth City Council 2021.
Occasionally Welsh Councils include the following statement, or versions of it, in their policy or documentation. This appears to be derived from the 2023 WG Guidance on EHE.
Legal precedent has established that local authorities can make informal enquiries of parents for details of the educational provision for their child. Goodred v Portsmouth City Council states “There is nothing remotely problematic in the defendant approaching a home-schooling parent…to request evidence that, if satisfactory, would enable the defendant to discharge its duty under section 436A without the need to serve a [notice to satisfy under section 437(1) of the Education Act 1996] R. (on the application of Goodred) v Portsmouth City Council16 November 2021
The case of Goodred v Portsmouth is unfortunately often misunderstood and referenced out of context.
It can sadly occasionally be cited by council staff to justify provision of samples of children’s “work” as part of informal enquiries, as if provision of these is requirement.
It is therefore important to understand the limitations and scopes of judicial reviews. This review was simply to consider if the practice of PCC was consistent with its own written policy and with national guidance.
That case did not test if the guidance or local policy were correct or appropriate.
It was only an exploration of whether Portsmouth CC followed its own stated policy of accepting written responses from families without automatically or routinely demanding other forms of evidence, and whether their practice was inconsistent with DfE guidance. Legal representatives of the DfE were present alongside the legal team representing PCC at the hearing.
The judge believed the department’s assertations that PCC staff were willing to accept written responses from home educating parents without regularly requiring or insisting on other forms of evidence – if he had not then he would have concluded that practice was not consistent and the council would have lost the case.
Therefore, that case is validation that, whilst a council may consider asking in individual circumstances for other information, it would not be lawful to have a blanket or routine policy of expecting or insisting on information to be provided in certain ways.
In addition, it also clarified that a parent is under no obligation to provide information in formats prescribed by the council.
These are points that are vital to bear in mind should councils attempt to cite this ruling to justify prescribing how families should respond to informal enquiries, for example if attempting to insist on “samples of work”.
Implications of any misapplication by councils of previous case law if considering implementation of the measures of the CWS Act
Research is due to be published shortly that demonstrates the impact of such misunderstandings or misapplications of case law by Welsh councils, alongside other misunderstandings of lawful roles and remits of councils in relation their approach to home educating families in Wales.
The issues of councils not adhering to lawful roles and remits, or of misapplying or misusing existing powers has to be considered before any policies or plans can be contemplated regarding whether those remits or powers should be markedly increased.
Especially in the absence of any form of external oversight or monitoring of council policy or conduct,
Especially in the absence of any form of external appeals, complaints, mediation, advocacy or tribunal mechanisms for when existing powers are misused, let alone if such powers were to be increased.