Friday, June 19, 2015

A critique of Daniel Monk's 2009 article and the reasons why

In 2009, Daniel Monk wrote his article Regulating home education: negotiating standards, anomalies and rights. This then formed the basis of the Badman Review - presumably deliberately, as it makes several references throughout to 'the forthcoming review', though I do not know to what extent Mr Monk was involved in the instigation of the review, if any.

Since 2010, Mr Monk has used the content of his article to form a course of training for Local Authority officers on how they should approach home educating families and the legal standing of their position in that respect. This provision of his training is apparently to be further uptaken since the establishment of the Association of Elective Home Education Professionals, at least one of whose meetings Mr Monk has attended. The content of this 2009 article therefore will increasingly be determining the stance of Local Authorities so I have taken a detailed look at it, with my commentary below.

In summary, my main concern lies in the many sizeable leaps of logic (I counted fifteen) through which Mr Monk draws his conclusions. Citing irrelevant legislation on at least six occasions and even draft versions of government guidance to support his line of thinking, he seems quite desperate to demonstrate that we ought to be monitored on a regular basis by the state, in spite of the firm and clear statement to the contrary in the Elective Home Education Guidelines for Local Authorities.

He also seems quite suspicious of the motives of parents who choose to home educate, accusing us of being "politically strategic", with a "'fundamental' support for home education" and "unquestioned power" over our children, "denying them education that respects their individual rights to develop their own views and values". He references religious motivations quite frequently, sourcing research and cases on this from the EU and US where schooling is secular and so many parents do home educate to provide religious tuition. In the UK where many schools can and do offer such tuition, the situation is very different but Mr Monk chooses not to acknowledge this.

His personal view of home education seems to stem from a political disapproval, speaking of an "unease" of privatised education, and the view that "unregulated home education implicitly condones education that conflicts with attempts to foster national cohesion and democratic values". Mr Monk never considers the potential damage to a child's wellbeing or learning process that could be caused by official visits to the family home.

In total, I noticed one complete misquote and one quite confusing typographic error (unless I misunderstood the meaning of the sentence in question). In the excerpts from Mr Monk's work etc that I include below, any added emphasis will be mine.

Initially, I'm reminded in the opening paragraph by a reference to 'the forthcoming review' that this is the article which informed the notorious Badman Review, explaining why Badman approached us with such seemingly preconceived ideas that bewildered us so much when the review was underway and before his dreadful, concluding report of June 2009.

In the introduction, I'm first jarred by this:

"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."

When one considers the wording of Section 7 of the 1944 act:

"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's clear that no change was ever required because both the wording and the spirit of the law are unequivocal: the responsibility for the child's education remains ultimately with the parent. Children fortunately still have parents even in the 21st century and it is in the parents' interests that the child is properly educated now, just as much as it was then.

Next, a mysterious misquote. Monk cites 'The 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' as follows:

"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'."

I checked through the document in question and found that it did not contain those words or anything that may have been misconstrued as those words in paragraph 84. Instead, in paragraph 67(c) it says:

67. The committee recommends that the State party: ......

(c) Ensure that all children out of school get alternative quality education

Different words entirely - perhaps Mr Monk had a varying copy of this particular UNCRC report. Furthermore, read in context with the previous paragraph of the report, it is also clear that this recommendation relates to children excluded from school: i.e., *not* Elective Home Education as provided by parents. I will give Mr Monk the benefit of the doubt and assume he was mistaken in his reading of this section rather than wilfully misconstruing it.

The piece goes on to list the various Department for Education and Skills initiatives (consultations, reviews and research) home educating families were subjected to in the late noughties which, from the receiving end, felt like an orchestrated sustained attack. Why does it feel like an attack? Because the education of our own children is - as set out in Section 7 - our own responsibility. Our territory. A field of endeavour in which many of us have become accustomed to operating without impediment from the state. Logically, if there are no problems then the state should not intervene. Presumably Mr Monk goes on to set out what he saw in 2009 as the problems necessitating intervention and these will be something more substantial than just "the law has changed in related areas, so it should also change in this one".

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 strenuous opposition from members of the home education movement. Conversely, no action will disappoint some LA 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 examine the inherent tensions and paradoxes between the competing interests and rights claims and to locate the issue within a broader political context.

I'll withhold my opinion until later on the success or otherwise of this endeavour to present the issues in as balanced a way as possible and note at this stage only that in the 6 years since this article was published, blessedly no such regulations have been introduced and we are still continuing to home educate in England in relative peace from the authorities. It seems that the only opposition to this happy state of affairs comes in periodically agitated spasms from a seemingly miniscule sector of 'some LA and child protection bodies' and this is whipped up into spurious 'concerns' which unfortunately look like nothing more than the last flails of a few fervently statist activists to regulate all of that which is not currently regulated, and to test and measure all of that which is not currently tested and measured.

There follows a section on the definitions of home education, including the then DfES version, followed by this commentary:

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 absolutely certain of is that he or she has exercised a legal right."

WRONG. The only fact that we can be absolutely certain of is that he or she is fulfilling a legal DUTY - nowhere in Section 7 of the Education Act is there any reference to parental rights, only parental duties - which are of course profoundly different things. The duty is to 'cause him to receive efficient full-time education, suitable to his age, ability, aptitude and special educational needs'. It's only by reading Monk in such close detail that the root cause of some of the manifest contradictions and misunderstandings inherent in the Badman Report start to become clear.

The child's right to education is set out in article 28 of the UN Convention on the Rights of the Child but it is plainly apparent even there that the provision of this education is a duty and not a right. There is no tension between conflicting rights of parents and children, because there are no rights for parents in terms of elective home education, only duties. To suggest otherwise is entirely and mystifyingly specious. Further, to quote lawyer and social worker Allan Norman, on non-consensual adoption and the law:

'...the atomisation of the interests of the child and the interests of the parents, setting the human rights of one in conflict with the human rights of the other is a peculiarly Western approach. Note in particular that whereas human rights may be conceived as privileging the rights of humans over the rights of States, this atomisation approach puts the State straight back in the picture as the arbiter of the dispute between the conflicted interests of parent and child.'

- it is a dubious political tactic, which also completely overlooks the parents' vested interest in the long term future health and prosperity of their offspring.

*EDIT: Fiona Nicholson points out that the UNCRC has not yet been incorporated into UK law, so legally there is no child's right to education in this country.

In speculating about the wide and varying possible formats for home education, Mr Monk concludes with the sentence:

"The need for caution against simplistic positions is clear when one considers the motivations of home educators."

But in law, our motivations are irrelevant. We are fulfilling our duty as set out in Section 7 of the Education Act. The law makes no distinction of our reasons for doing this in certain ways, thankfully, in much the same way as it refrains from examining Mr Monk's possible motivations for the various articles, lectures and training he has delivered on the subject. In a civilised society, pending the authoritisation of an actual thought police, the jurisdiction on the inside of people's heads remains their own.

He goes on to outline the possible motivations anyway, and then moves onto rights, citing that Knight/Adonis quote at the beginning of the Elective Home Education Guidelines for Local Authorities:

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

This is the problem with language. The first 'right' in that sentence is a legal right, the second is not, in that it is not set out anywhere in law that relates to our country. Not daunted by this subtle but crucial detail, Mr Monk goes on to expound it and then:

The DCSF Guidance states that 'parents have a right to educate their child at home' 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.

I think it is beyond debate, because it does not exist as a right - it exists as a duty! I will entertain for a minute the notion that in exercising our Section 7 duty we somehow have the 'right' to decide whether to do this 'at school or otherwise' and the problem is that, if it is read as a 'right' and not a duty, the meaning of that whole section of law is turned on its head. I must cause my child to receive an efficient full time education etc involves me having some means of evaluating its effectiveness and whether it is suitable to his age, aptitude, ability and special educational needs. If I decide the only way I can cause him to receive such an education is 'otherwise' than registration at a school, this cannot be seen as a right but as a crucial part of the carrying out of my legal duties as his parent.

Mr Monk confusingly goes on to explain:

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.

- which I *think* is what I said......

In other words, parents have responsibilities for their children, not rights over them.

In meeting the child's right to education, I agree. So where are the conflicting rights? There follows a strange sort of analogy with Section 9 of the act:

'In exercising or performing all their respective powers and duties under the Education Acts, the Secretary of [State and local education authorities] shall have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents, so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure.'

- but this relates to schools and expenditure, not elective home education. To suggest a relationship between Sections 7 and 9 is stretching a point, to say the least. I am reminded of one of Cinderella's stepsisters, effortfully and fruitlessly trying on her shoe.

Mr Monk then uses the European Convention on Human Rights (ECHR) and the United Nations Convention on the Rights of the Child (UNCRC) to further establish children's rights to education and goes on to cite case law relating to corporal punishment in schools to suggest that:

.. what is envisaged here is not unfettered autonomy for parents but a relationship between parents, children and the state.

- conveniently ignoring the unassailable fact that the children of the two Scottish mothers Campbell and Cosans in the case in question were actually registered at school, so that the quotation from the judgment:

the convictions of parents must not conflict with the fundamental right of the child to education

is thrown into a whole different light when read in context with the rest of the case.

I am perplexed by this idea that it might be possible to strengthen an argument simply by lifting odd sentences even from precedent setting cases completely out of context and citing them as if they were somehow relevant to the matter in hand.

The next paragraph has me gasping. Suddenly Badman's prejudicial, already utterly negative attitude towards us from the very start of his review is explained.

For some advocates of home education, the parental right is a 'fundamental freedom' and 'an essential part of democracy'. 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.

And there follows a rant about the Christian Right in the USA, which bears little resemblance to the UK home education movement. The thing is, when I say I do not want my children's education to be inspected by officials, it's because the few visits we allowed actually did damage the children's education. One in particular was conducted by a demanding inspector who was very impatient with my 8 year old's reading level. After he had reduced my son to tears of frustration and humiliation, he then confessed in answer to my questions that he had not read the extensive local authority file on my son's profound dyslexia before making his visit. If officers don't even read their own files in advance on the children whose educational provision they inspect, how can we safely invite them into our homes? It is nothing to do with political strategies. Our children are real people who we love, not mere political pawns for whatever world changing agendas we may have.

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 unhappy in school.

There follows more about school and the paragraph ends with:

Yet, for children's rights supporters of home education, the paradox is that their support leaves unquestioned the power parents have over their children.

- thus painting us in such a negative light, I am left wondering what he thinks we might do with such power over our beloved offspring. Obviously nothing benign! And yet, were he to spend any significant amount of time with the average sort of home educating family, I suspect he might be surprised to discover rather that the children have an inordinate power over their parents. Would this be frowned upon by him as well? Perhaps Mr Monk prefers the nation's children to be obedient, but only to school teachers and/or elective home education inspectors for reasons best known to himself.

There follows an outlining of two EU cases relating to German home education which do nothing more than confirm my 'NO' vote in the forthcoming referendum, although the quotes about parallel societies and 'the public interest of securing the education of the child' (thereby reducing children to the status of future work units, one assumes) are intriguing. Also this is the second occasion in this article - the first being in reference to US home schoolers - that Mr Monk makes reference to religious parents seeking to protect their children from secular tuition in schools, for no imaginable reason other than to suggest an air of fundamental extremism. This is strangely at odds with his original plan to provide a balanced view of the situation, because he must be more aware than most people that UK schooling is not secular and so therefore UK home education does not contain this element of religious concern.

Regardless of the respective merits of monitoring or a full ban, both decisions challenge the claim that home education is a fundamental right.

This is obviously true for Germany, which must not have a Section 7 like ours on its national statute. Earlier in this post I challenged the claim that home education is a right, rather than a duty in England where we are commanded by Section 7 to cause our children to receive a kind of education for which school is often not the best environment. I have heard no official concerns in this country of parallel societies or 'the public interest in securing the education of the child', so Monk's comparisons with the German and American situations seem invalid, to say the least.

The following paragraph is perhaps the most illuminating so far. Some excerpts:

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.

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.

My understanding of collectivism is that there are two varieties: horizontal, and vertical. "Vertical orientation emphasizes hierarchy," and "Horizontal orientation emphasizes equality." It seems to me that a family home educating using, perhaps, the autonomous method might in many cases be described as a horizontal collective, whereas a structure such as a university most definitely incorporates a hierarchy. Both care about others: neither is individualist.

There follows a section about monitoring home education, beginning with the sentence:

The critical question now is not whether home education should be permitted but how it should be monitored.

- with which I completely disagree, and cannot see how Mr Monk has demonstrated the need for monitoring in this article before this point. Perhaps he will do so in the next few paragraphs.

But determining whether LAs require more or less powers is complicated by the fact that the existing legal framework is open to different interpretations.

Fewer powers than are currently set out in the Elective Home Education Guidelines for Local Authorities would of course be ideal for us, but I am so far unaware of other interpretations of the existing legal framework.

On the issue of registration, Mr Monk suggests that framing home education as a duty and not a right makes it "easier to require parents to demonstrate competence". Again, I disagree. It is quite possible for us to have a duty to cause our children to receive an efficient full-time education suitable to their age, aptitude, ability and special educational needs without also bearing a positive burden of proof to society, indeed this has been the situation since 1944 and it has worked quite well in most cases. While parents themselves, knowing their own children best, decide the content and quality of the education provided there is no need for this to be monitored by the state, parents having more of a vested interest in the child's eventual outcomes than the state does.

There follows a description of registration for home educators, although Mr Monk is mistaken about changes to the deregistration regulations - these still stand as they did before 2006. He quotes EO and Roland Meighan on the issue and then appears to make another illogical leap from this to the conclusion:

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. 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.

If Mr Monk is referring to Section 10 of the Children Act for those 'statutory duties', it is clear that unregistered home educated children were never meant to be individually covered by it, home educating parents not being listed as 'partners' in section 4.

In his 'Local authority duties and responsibilities' section, Mr Monk first examines Section 437 of the Education Act, beginning with:

This makes clear that it is for LAs and not parents to determine what is 'suitable education'.

I do not think that is clear. The way this has worked historically is quite in keeping with the wording of the statute, which is that home educating families, knowing their own children better than a local authority could do, choose the method of education which most efficiently provides a full-time education suitable for their child's age, aptitude, ability and special educational needs. If there is a failure on the family's part to establish an efficient method that is suitable and the local authority is made aware of the appearance of such, the local authority should take action to remedy the situation. But it cannot determine the best method for individual children in the first instance because it does not know or live with the children and therefore cannot have sufficient information with which to make that decision.

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 education must be efficient, and suitable for the child's age, aptitude, ability and any special educational needs he may have. It is unreasonable to expect local authorities to understand every home educated child's aptitude, ability and special educational needs and so the local authority cannot determine whether the education is suitable for them any more than statute can.

Another leap of logic occurs a few lines later:

The DCSF guidance states that 'local authorities have no statutory duties in relation to monitoring the quality of home education on a routine basis'. While the word 'routine' here could be interpreted as acknowledging that not all home educators will be monitored, the word 'quality' could be interpreted to suggest that LAs should, at minimum, have knowledge of the fact of home education.

- both interpretations being, in my view, the least likely ones most readers would reach. (The most likely being that 'routine' means 'regularly' and 'quality' means the effectiveness of the provision.)

Mr Monk is then reduced to extrapolating previous drafts of the guidelines until he finds the words he seems to prefer to read.

On Children Missing Education (CME), he says:

The Education and Inspection Act 2006 creates two new duties that one can argue require the introduction of compulsory registration.

- going on to begin with Section 436A:

(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.

(2) In exercising their functions under this section a local education authority must have regard to any guidance given from time to time by the Secretary of State.

(3) In this Chapter, “suitable education”, in relation to a child, means efficient full-time education suitable to his age, ability and aptitude and to any special educational needs he may have.”

And in commentary, Monk says this:

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 [emphasis his, not mine] 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.

I refute this reading of the text, which still works perfectly well when 'suitable' means efficient full-time education suitable to his age, ability and aptitude and to any special educational needs he may have according to his parents, in the absence of any S437 'appearance' that it is not.

He goes on to cite the 2009 version of the Children Missing Education guidance (since revised) where it required Local Authorities to "make enquiries with parents educating children at home about educational provision being made for them". This has now been replaced with a note in the new guidance on page 6, which refers to a S437 action in respect of home education, not a S436A one. The new statutory guidance on CME also links back to the Elective Home Education Guidelines for Local Authorities, thereby strengthening their position in law.

On child welfare and protection duties, Monk cites Section 175(1) of the Education Act 2002:

175 Duties of LEAs and governing bodies in relation to welfare of children

(1) 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.

He has this to say about it:

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. 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.

- though it smacks of desperation to suggest that every new piece of legislation - which came thick and fast through the Labour years - even vaguely related to home education somehow warrants complete regulation reform.

There follows a reference to the Every Child Matters agenda, which span from Section 10 of the 2004 Children Act, although Mr Monk acknowledges that the whole thing makes reference to pupils and school attendance, thereby excluding the home educated. He makes reference to the 2007 letter from Lord Adonis to a home educator's MP, containing the words:

The state does not currently prescribe what form of education parents should provide, whilst all maintained and independent school provision is prescribed in legislation and subject to inspection. This anomaly is at odds with Every Child Matters reforms, supported by the Children Act 2004, which set out the Government's aim to improve educational outcomes for all children, regardless of where they are educated, and to narrow the gap between those who are doing well and those who are not.

( - which then triggered AHEd's 'Anomaly' campaign.)

Since Labour lost power in 2010, Every Child Matters has moved off the political agenda thankfully, since it was of concern to those of us who wanted to protect our parental rôle.

Mr Monk then makes his seventh logical leap of the article by suggesting that the wording of Section 176 of the Education Act 2002, referring as it does to the consultation of pupils in connection with the taking of decisions affecting them, also

arguably supports the case for compulsory registration of home education.

In conclusion, there is an acknowledgment of the legislative protection for children from abuse in Section 47 of the Children Act 1989, which of course applies to home educated children as much as any other.

In his section on 'voluntary registration and support' Mr Monk makes the case that the support provided to registered home educating families, including as it sometimes does the contact details for support groups, and so this too "supports the introduction of compulsory registration", overlooking entirely the existence of search engines to enable home educating families to find the support which could not be more clearly signposted.

What Mr Monk says next is interesting:

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'.

- an argument I could not have made better myself. And:

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. 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.

I have experienced this problem when my (now adult) children were registered with the local authority as home educated due to deregistration from school. The relationship is of little benefit to the family (except perhaps to be of support in Family Court processes when a non resident parent is against home education), indeed the interventions can be so damaging as to threaten the parent's ability to fulfil her Section 7 duty, yet one is constantly aware of the fine balance between the logical and necessary assertiveness to resist them, and the possible consequences of doing so.

Another point with which I agree:

It is likely that some parents will avoid registration even if compulsory registration is introduced. A policy of coercion from the outside is, however, unlikely to develop a relationship based on trust and openness and would effectively criminalise parents who may be providing suitable education.

He then expounds the nothing to hide argument in this context from which he unsurprisingly concludes:

Such an argument, however, overlooks the legitimate interest of the state in playing an active [his emphasis] role in protecting the right of every child to education.

And then goes on to counter with the point I would have made next, which is:

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.

- those implications being often quite damaging.

In his section on surveillance and monitoring powers, Mr Monk begins:

While there is uncertainty about the circumstances in which LAs are obliged [his emphasis] to investigate, their statutory powers are relatively straightforward where they have concerns about the nature of the education provided.

I do not think there is uncertainty about the circumstances in which LAs are obliged to act. Mr Monk has not, so far, successfully shown that there is and the law is clear on the point.

Within LAs, however, those responsible for monitoring home education are very rarely the same individuals as those responsible for enforcing school attendance and very much depends upon 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.

Families often resort to home education when the school system in their local area fails to meet with their child's needs or is unable to supply a consistently efficient full-time education suitable to their child's age, ability and aptitude. If such an education is not then provided at home, what is the resolution? The only logical answer - if the family still really wants school provision - can be that the school system must be made to supply the provision, otherwise the parents have no legal choice but to continue home educating as best they can. If the local authority cannot find a suitable place for the child, then the local authority cannot justifiably - or even practically - issue a school attendance order.

Confusion also exists in determining what LAs can and should do prior [his emphasis] to commencing school attendance proceedings.

I think the Elective Home Education Guidelines for Local Authorities as follows:

2.8 Prior to serving a notice under section 437(1), local authorities are encouraged to address the situation informally. The most obvious course of action if the local authority has information that makes it appear that parents are not providing a suitable education, would be to ask parents for further information about the education they are providing. Such a request is not the same as a notice under section 437(1), and is not necessarily a precursor for formal procedures. Parents are under no duty to respond to such enquiries, but it would be sensible for them to do so.

- explain perfectly well what LAs can and should do prior to commencing school attendance proceedings. The above derives from the summing up by Lord Justice Donaldson in the 1980 case of Phillips -v- Brown and Monk goes on to quote the relevant excerpt which surrounds the 'it would be sensible for them to do so' phrase therein.

Monk's next sentence is difficult to understand unless perhaps it contains a typo:

The case has given rise to confusion; the reason for this, arguably, it 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.

My best guess is that 'authority' in that sentence was meant to be 'authorised'. So Monk thinks there is confusion when parents *can* refuse to comply with requests:

and at the same time, for LAs to adopt a pro-active approach to monitoring home education.

And yet there need be no confusion, for there is no need for LAs to adopt such a pro-active approach to monitoring. The process is simple to understand, should be simple to carry out and is set out in section 2.8 of the Elective Home Education Guidelines for Local Authorities, as set out above. This complies with all of the relevant statute and case law and leaves the necessary way open for either party to seek resolution in court if needs be.

On LA officials being allowed inside home educating families' homes, Monk cites Lord Justice Slade in the 1985 R (Perry) v Gwent County Council case, in which Slade praises the Local Authority for making home visits, although I think this hardly amounts to useful legal precedent for either side of the argument. Then he quotes the Elective Home Education Guidelines for Local Authorities:

3.6 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. [Monk's emphasis] 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.

To find his 'confusion once again abounding' in this instance, Mr Monk again seeks out a draft version of the guidelines for some slightly different wording, but this is irrelevant because the draft versions were just that, and never even enacted. The draft guidance mentioned lack of home visits possibly leading to the conclusion that there was insufficient information to satisfy them - and Monk likens this to Donaldson's:

If the parents refuse to answer it could very easily conclude that prima facie the parents were in breach of their duty.

But refusing to answer a request for information, as Mr Phillips did in that case, is very different to refusing a home visit, so I cannot see how the obsolete draft version is closer to Donaldson, as Monk alleges. The two situations are unrelated in detail and not worth comparing.

The third case law Mr Monk quotes from on the issue of home visits is from R (Tweedie) v Surrey Quarter Sessions Appeals Committee (1963):

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.

The Tweedie case is 52 years old now, 46 at the time of Mr Monk writing this article. He concedes that its interpretation is questionable, but still suggests it would influence the outcome in court, if a family there challenged an LA's insistence on inspection.

Article 8 of the European Convention for the Protection of Human Rights (ECHR) is mentioned as a "legitimate argument" for declining home visits, although this is immediately countered by the approach to home education of the European Court of Human Rights (ECtHR). Mr Monk quotes from the summing up of a case there relating to Article 2, not Article 8 as follows:

'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.'[Monk's emphasis]

And the commentary:

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.

My commentary on that is to again fervently hope for a 'no' vote in the forthcoming referendum, so that we could only have UK and English law to contend with in protecting our families from unwanted government interventions. Monk then goes on to claim the above means "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 power 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.

I do not see any acknowledgment from Monk so far about the risks to the child's education of such evaluation. What of the child who is excruciatingly shy, and only feels safe in his own home, uninvaded by strangers? What of the child who is on the cusp of learning to read, who is deterred from this considerably by pressure from visiting inspectors? What of the child whose love of learning in general is so deterred, as my now adult children's love of learning always was, whenever it happened? Their education was set back by several weeks at least with every visit. Would these too be deemed failures? Such is his evident lack of sympathy for the private practice of home education, one can only conclude that they most definitely would.

On the definition of suitable education, Monk cites the Paramountcy Principle (New Zealand article, but the only free-to-read explanation of the same thing), likening the 'best interests' requirement set out in Section 1 of the 1989 Children Act:

When a court determines any question with respect to —

(a) the upbringing of a child; or

(b) the administration of a child’s property or the application of any income arising from it,

the child’s welfare shall be the court’s paramount consideration.

- to the consideration of what constitutes 'suitable' in education, thereby suggesting that a possibly conflicting parental interest in the matter might need to be discounted. The following irony is almost amusing, unless you happened to be the family in either situation:

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 [his emphasis] are challenging the education being provided in maintained schools, the reverse is often the case.

This one sentence surely encompasses the whole argument. 'Suitable education', being a subjective definition, is dependent on the position and interests of whoever is seeking to define it. LAs will probably tend to undermine that provided in a home setting, whereas parents who have their family's long term future to think of will judge it according to the progress made by the child.

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.

- but presumably not Local Authority perceptions of the failure of parents to provide it that is increasingly one of the explanations for the increase in undue interventions for home educating families?

Mr Monk does then concede that under child welfare regulations:

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.

And so in some cases...

... a range of support measures to assist home education may be more appropriate.

But 'support' is often not actually useful or helpful, being a complex word which is often misappropriated to mean something other than its dictionary definition. One would imagine, for example, that a lack of any kind of coercion would be involved in its genuine provision.

Reverting discussion back to the Section 7 wording, Monk goes on to also concede that a local authority cannot gauge an individual child's ability and aptitude - but he uses this point to then suggest it as a further reason why they should be given access to the home, the work and the child. On privacy, he has already said back on page 6:

.. the extent to which the 'private' sphere is every truly private is questionable.

Monk cites the Harrison case, defining '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'

- suggesting that this also:

legitimises the necessity of access to a child's work and evidence of progress.

But unless we have completely given up on the presumption of innocence in this country, it of course does nothing of the sort.

The next paragraph is interesting, in light of the absence of official definitions for the terms:

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.

If Monk is right about this, it should offer some protection from interventions for home educating families and it is arguable that it adds strength to the argument therefore that families should be the arbiters of those definitions in the absence of reported problems to suggest otherwise.

On socialisation, Monk cites American research, which states 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.

Monk adds the following comment:

There is no clear evidence to refute this research.

There follows an extensive and illuminating section on civic education, containing as it does the words:

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 former.

- which raise profound questions about the purpose of education itself. Is it, as the article just linked asserts:

  • To give all learners the basic skills to access and drive their own education.
  • To develop the softer, non-subject life skills needed to succeed.
  • To impart powerful subject knowledge (and by this we mean the facts, concepts and procedural knowledge needed to continue to take that subject further and progress in it)?

Or is it to change the world and its opinions, as Monk seems to assume, presumably to bring it more into line with his own? As the parent of five home educated children who are individuals, each with their own distinct and very contrasting opinions, my instinct is to protect them from this kind of dogmatism as much as any other, so that they might retain the freedom to genuinely think for themselves.

He cites an American case regarding the Amish people, in which their right to not send their children to school beyond the age of 15 was upheld, with the commentary:

An important factor for the Supreme Court .... 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, ... 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 [by means of the Badman Review] 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.

I don't know to what extent home education plays a part in Islamic fundamentalism in the UK, but I think if any Islamic fundamentalist had been home educated instead of educated in a Muslim religious school and a mosque, we would be extremely aware of it by now because the fact would have been heavily publicised by people like Barry Sheerman .

In his conclusion Mr Monk again cites Donaldson:

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.'

and further comments:

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.

- even when Section 7 of our Education Act states this as a parental obligation, not a governmental one.

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.

On the contrary, parents who choose to home educate must only acknowledge the current legal position, which specifically precludes regular monitoring by the state.

Parents who home educate are not simply performing a private duty but also a public function.

I disagree. They are mainly obeying their natural instincts to educate their young, which also happens to comply with their Section 7 legal duty. They cannot be expected to be responsible for the mores of the state or the entire world and it would be unreasonable to expect this of them.

For all these reasons the case for compulsory regulation is logical, legitimate and compelling.

No. It is expensive, invasive and damaging to children.

He later sets out a good argument for us to continue to refuse state funding:

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.

The article ends with a prophetic vision of the unfolding situation, in the wake of the 2010 election which put paid to Badman's recommendations:

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.

This is the present situation, which is problematic to some extent, but still vastly preferable to what would have happened if the 2010 election result had been different. The Conservatives favour the ethos of localism, as set out in their 2011 Localism Act and it is therein that I suspect we might find our remedy for Monk, who is now using the content of his 2009 article to deliver a series of training programmes to Local Authorities, advising them to ignore elements of the Elective Home Education Guidelines for Local Authorities and reassuring them that the success of cases in the EU and America would support their actions in so doing.

2 Comments:

Blogger Maire said...

Thank you Gill, an epic effort that puts the likes of Monk to shame.

11:50 pm, June 19, 2015  
Blogger Michelle, Nottingham said...

What Maire said ^^^.

An extremely well written and considered article that does not misinterpret the facts, thank you Gill. It beggars belief that Monk's paper has been followed and trusted by would-be 'policy makers' without any apparent cross-referencing of the truth, or the context (or rather out-of-context)of his bold statements. It absolutely sheds light on the whole premise behind the Badman and Balls double act of 2009.

1:53 am, June 20, 2015  

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