Portsmouth Home Educators’ Legal Action is Important for All Families

Following the establishment of a state-controlled education system in England and Wales through the Education Act 1902, most people in Britain have become used to the belief that education is the responsibility of the government. That, however, is far from the truth. The Act’s provisions on Elementary Education (s.9) charged the new Boards of Education with having “regard to… the wishes of parents as to the education of their children.”

Section 36 of the 1944 Education Act also clearly recognised the primacy of parents in regard to their children’s education:

Duty of parents to secure the education of their children

It shall be the duty of the parent of every child of compulsory school age to cause him to receive efficient full-time education suitable to his age, ability, and aptitude, either by regular attendance at school or otherwise.

In respect to the above clause, an eminent QC observed in 1961, “Parliament never visualised a Mrs Baker.” They were referring to Joy Baker, a British pioneer of ordinary parents reclaiming the responsibility to educate their own children as allowed by the ‘otherwise’ option. Despite the QC’s insight, thirty-five years later Parliament didn’t foresee hundreds of future Mr & Mrs Bakers electing to follow her example. We know this because s.7 of the Education Act 1996 retained the above clause and it still applies today!

By that time, there was a growing number of families discovering the many benefits of returning to family-based education, ourselves included. Over the last twenty-five years this quiet revolution has grown significantly. After seeing the children of family or friends benefit from what may be described a tailor-made education, many have been encouraged to embark on their own journey.

Another driver, increasing even before the pandemic, has been parents withdrawing their children from a school system which can no longer provide them with a suitable education. A large number of these home education ‘refugees’ have children with special educational needs, and parents are finding these are no longer being met in schools, which are under unprecedented pressures.

Parental responsibility called into question

Given the benefits many children gain from an education otherwise than in school, one might imagine that governments would want to encourage other parents to embrace their responsibilities more fully. Over the last decade the very opposite has been true, with rumour after rumour being circulated about the dangers that home educating parents pose to their children. This misinformation campaign – there is no other way to describe it, for it has all the hallmarks of being nothing more than propaganda – seems to have been stirred up in order to turn political and public opinion against any family which doesn’t consent to their children having the values of the state engraved on their young minds day after day.

I cannot detail here the many cycles of fearmongering about home educating parents, since the purpose of this article is to examine very recent developments rather than recount a long history. For those wanting to discover more, the years immediately after Labour Minister Ed Balls initiated a review of home education in 2009 are catalogued in the earlier sections of this blog. From the outset Balls appealed to the tragic memory of eight year old Khyra Ishaq, who died after her mother withdrew her from school along with some of her siblings. The Serious Case Review concluded that if Birmingham Council had responded as they should have done, things would have been different.

Following the 2010 general election there was a brief lull in the propaganda against home education in England.

In Scotland a different approach was taken in order to introduce state supervision over every family. Many will remember the Named Person Scheme, which was a vital aspect of the Scottish Government’s “Getting it Right for Every Child” legislation. In 2016 the Supreme Court judged its information-sharing provision to contravene Article 8 of the ECHR, which states “Everyone has the right to respect for his private and family life, his home and his correspondence.” Events leading up to that judgement can be found on the NO2NP campaign’s website, and details of how the Scottish Government continues to drag its feet in response to losing the case are recorded on the Scottish Home Education Forum.

In recent weeks the Scottish Government has become “the first devolved nation in the world to directly incorporate the United Nations Convention on the Rights of the Child (UNCRC) into domestic law.” Time will tell whether or not this will further undermine parental responsibilities in education.

Whilst Scotland was focussed on the Named Person Scheme, the anti-home education campaign was revitalised in England. This received a boost in 2017 when Lord Soley gained support to introduce a Private Member’s Bill. He probably knew it stood very little chance of becoming law, and it seems therefore that his intention was always to use it as a lobbying device. Over the last three years, The HE Byte website has been keeping track of the political debate and media rhetoric stirred up by Soley’s Bill, not just in England but throughout the British Isles. This is a useful resource for those who wish to be better informed.

Parents now assumed to be ‘failing’

One direct result of the noble peer’s lobbying was the publication of revised guidance by the Department for Education in April 2019. (Because education is a “devolved” matter, this applies only in England.) Beginning with Ed Balls, the propagandists have sought – through mud-slinging rather than reasoned argument – to justify not only the registration of electively home educated children but also regular monitoring of their progress. Whist this has been continually argued for on “safeguarding” concerns, no attention has seemingly been paid to the massive shortfall of genuine safeguarding within the school system.

The fruit of the lobbyists’ efforts appeared in s4.2 of the 2019 Guidance for local authorities. Referring to s.436A of the Education Act 1996 – inserted by the Education and Inspections Act 2006, s.4(1) – the guidance signals a shift in understanding of the carefully balanced relationship between the responsibilities of parents and those of the state:

Until a local authority is satisfied that a home-educated child is receiving a suitable full-time education, then a child being educated at home is potentially in scope of this duty… However, this should not be taken as implying that it is the responsibility of parents under s.436A to ‘prove’ that education at home is suitable. A proportionate approach needs to be taken.” (Emphasis added)

Prior to this, education legislation had been interpreted on the established basis that citizens are “innocent until proven guilty,” which has been the bedrock of British law for centuries. Increasingly though this principle is being eroded in Britain, as this law firm observed in the wake of a 2018 case where a man continues to be considered potentially guilty even though a court had found him innocent!

Home educating parents are now being required to prove themselves innocent in order to satisfy local authority staff, who on the whole have no personal experience of home education and who are authorised to act as both police and prosecutors!

Parents in Portsmouth under siege

The Department goes further in its guidance, actively offering to partner with any local authority in testing this changed interpretation of legislation in the courts. Later, in s6.22, the guidance reads:

“The department will be happy to support local authorities to test the boundaries of current case law through discussion with them of potentially difficult home education cases which they are contemplating bringing before the courts, on the basis that the public interest means that local authorities should take this approach in suitable circumstances.”

At the time of writing there is no evidence that this offer has been taken up by any council, but parents in Portsmouth have over the last year and a half found themselves coming under unprecedented levels of resistance by the City Council to accept any evidence provided to them that parents are providing a suitable education to their children. Portsmouth Home Education Group state:

“Between September 2019 and October 2020, PCC issued 137 s437 ‘Notice to Satisfy’ letters, which inform the parent(s) that the council believes that they are failing to provide their child with a suitable education, and gives the parent 15 days to satisfy the council that a suitable education is being provided, before potentially escalating to a School Attendance Order (SAO).”

This amounts to over 50% of EHE children known to the Council, which is an unparalleled amount, given that in most years many local authorities do not issue any SAO’s with regard to EHE children.

The pressure on hard-working families became so great that in December the group decided to take legal action against PCC. In January a QC wrote formally to the Council, arguing that their “refusal to consider reports from parents as evidence was unlawful.” The Council’s response did not satisfy the group’s legal team, and in early February they launched a second crowd-funding appeal to proceed with a full Judicial Review of PCC’s policy and actions.

A large proportion of the UK’s home educators watched with amazement as collective donations to this cause passed £20,000 in less than 18 hours! Three days later, donations had reached the £30,000 mark, which is a significant proportion of the £38,000 that may be needed.

It is evident that Council has been stalling in its responses to both the initial letter and the formal application for a Judicial Review. They should have responded to the latter by Friday 26 February, after the Judge shortened the standard response period by a week, but they failed to comply. It wasn’t until 22 March that Portsmouth parents received confirmation that their case was to be considered by a judge. Apparently Hampshire is covered by the Cardiff office of the Administrative Court, and they have a high workload at present, so there is no indication of how quickly the case will proceed.

In their FAQ document the Portsmouth parents state that this matter is important to home educators elsewhere “because of the precedent it sets for other local authorities. Portsmouth is not the only council to push their remit beyond the government guidance and to treat home educators badly.” They emphasise the ridiculousness of PCC’s approach by citing the experiences of one family which “has been taken to court year after year, despite the court agreeing each time that provision was suitable.”

It is no wonder that the wider and very diverse elective home educating community across the UK have rallied round them. This is far from the “proportionate approach” required by the 2019 Guidance!

The importance of this case to every parent

In writing this account however, my point has not been to convince home educating families that the outcome of this case is very important. My hope is to alert everyone who reads it that this has implications for them. Just as the article I referred to above warns readers that the principle of “innocent until proven guilty” is being eroded by stealth, we are witnessing a far more advanced erosion of parental responsibilities taking place across society.

I’m of an an age where I can remember there being a balance of respect between school teachers and parents. That balance has been lost and there is now an almost complete lack of trust in parents being expressed by “children’s professionals” from Children’s Commissioners down! Three years ago this website carried a guest post from a EHE mum who is also a trained teacher. It is a copy of a letter to her MP in response to Clive Soley’s Bill, and one paragraph is worth quoting in full:

“When I was a child the first Latin phrase I remember learning was “in loco parentis” and I was aware that I needed to do what the teachers told me to do because they were acting under delegated authority from my parents. This is still the case in law but staff in schools now are generally expected to behave as though the position were reversed; as though the parents were merely agents of the school. We were all clear about the vital nature of parental guardianship. Decades later, starting back in school this time as a teacher, I was perturbed that often I was being expected to supplant parental guidance. Now I regularly meet parents who express deep concern about how they are being routinely overruled in their judgements concerning their own children.”

For decades the majority of parents have failed to recognise that they are being disfranchised as the primary protectors of and providers for their children. I am not referring simply to their children’s education, but now in so many aspects of their lives it is state employees not parents who are considered the de-facto “safeguarders” of every child.

Consider the narrative which has been repeated so often through the various lockdowns of the last year. How many times have you seen reports similar to this one from last April, highlighting comments by the then Children’s Commissioner for England?

“The report by Anne Longfield said hundreds of thousands of young people are off the radar of ‘early warning systems’ such as schools, putting them at heightened risk. It calls for the government to ensure that councils and teachers stay in touch with those most vulnerable to exploitation, and those suffering the ‘toxic trio’ of domestic violence, substance misuse and mental illness at home.”

Whether or not the numbers are exaggerated, Longfield’s narrative arises from the view that parents cannot be trusted with their own children. This fear filters down through the ranks and is now the prevailing mindset in children’s services of all types.

A friend of ours, an experienced home educator, was looking after their young grandchild on weekdays during the recent lockdown. They observed that on-line lessons were not helping their grandchild. They spoke to the school to say they would teach the child one to one, but were told that the child must be seen on screen at least once a day by school staff “for safeguarding reasons.”

It’s time for all parents to realise that they have been lulled into allowing their parental responsibilities to be usurped by the state, and that they should demand that what rightly belongs to them is returned without delay!


Post Script: On 1 April, Portsmouth Home Educators Group announced that their application for the judicial review has been rejected by the court. However, we are entitled to ask for renewal of the application, which means that we get an oral hearing on this question in front of a different judge. Their barrister, David Wolfe QC, doesn't view this is a significant setback as this happens fairly frequently and in the past he has gone on from an initial rejection to win cases.

Overall this will delay the case by two to three months, which means if it goes to court for a full Judicial Review hearing it will not be until the late summer or perhaps autumn. More details can be found in their FAQ document.

Update 10 April: PHEG have now been informed that the application hearing to determine if the JR application can proceed will be held on Monday 26 April in Bristol. This is much earlier than they expected.

Update 26 April: At the in person hearing today the judge granted the appeal by PHEG and their case will now progress to a full Judicial Review. More details are available on the Education Otherwise website.

An interview for the Family Education Trust

This interview was originally arranged for the Family Education Trust’s Newsletter, Spring 2021.

Transcript:

Home education has recently become a big topic in the news due to coronavirus and the resultant closing of schools. Many parents are having to home educate their children for the first time. Others, however, have adopted home education as a way of life. For several years there have been moves to bring about mandatory registration and monitoring of all home-educated children.

Home educating veteran Randall Hardy is a vocal opponent of these plans and is involved in several initiatives which seek to protect the freedom of parents to educate their own children in the way they deem most suitable for them. He believes it is important that everyone understands why this natural and historic responsibility is under threat.

Here FET´s Senior Researcher Piers Shepherd interviews Mr Hardy about educational freedom, the challenges currently faced by home educating families and what the consequences will be in future if the lobbyists are allowed to succeed.


Some of our readers will be home educators, but for others home education may be something quite novel. What would you say are the principal reasons that parents decide to home educate?

The first pioneer of the modern form of home education in England was Joy Baker, a Norfolk mother of five, in the 1950s. She believed that all parents should have the right to determine how their children are educated and by whom. I would add that her view was based on the natural and historical responsibility of all parents.

Following Joy Baker there were a few pioneers of elective home education across the UK from the 60s onwards. The majority of these were motivated by their philosophical or religious convictions. Their position continues to be protected by Human Rights Treaties. For instance, Article 2 Protocol 1 of the European Convention on Human Rights reads:

The State shall respect the right of the parents to ensure such education and teaching is in conformity with their own religious and philosophical convictions.

In recent years the reasons why parents choose to teach their own children have become more varied. A recent Local Government Association report commented:

In the large majority of cases this was because the parent felt that either their child’s special educational needs or their child’s mental health needs were not being met.

There were problems with the sample size of parents approached in that report. A larger survey by the parents’ group “Define Fine” carried out last year, observed:

The overarching reason for deregistering a child was to prioritise their mental health & wellbeing.

In other parts of the world there are other reasons. For instance, I have been told that in the United States, concerns over gun crime is now a major factor.

In April 2019 the government produced new guidance for local authorities in England on elective home education. What would you say are the positives and negatives in this guidance and is there anything in it that we should be particularly wary of?

Besides recognising the primacy of parents in ensuring a child receives a suitable education, the one good point is that the government said there was no need to change the law in England in regard to monitoring home-educated children. However, that said, the implication was that local authorities already have all the powers they need through legislation regarding their ‘safeguarding’ responsibilities. The subtle change resulting from this new emphasis was a move away from the previously recognised position that a council should only make inquiries if there were concerns that a child was not receiving a suitable education.

This has been turned on its head by section 4.2 of the Guidance for LAs, which at one point reads:

Until a local authority is satisfied that a home-educated child is receiving a suitable full-time education, then a child being educated at home is potentially in scope of this duty.

British law is famously based on the principle that citizens are innocent until proven guilty. This clause has inverted the basis of educational law, by making clear that a local authority should act as if home educating parents are guilty of failing to provide their children with a suitable education until they have proved themselves innocent to a local authority officer who may or may not be biased against home education. Practically, this change has resulted in a situation in Portsmouth, where the Council has in recent months issued 137 section 437 ‘Notice to Satisfy’ letters to home educating families. According to the Portsmouth Home Education Group, this is over half the families known to the council.

Parents in the area have taken advice from a QC and recently begun legal action against the City Council. The wider home educating community is keeping a close watch on the response because in the new guidance, after reminding LA’s of ‘their public responsibilities as prosecutors’ (section 6.19) the Department for Education added:

The department will be happy to support local authorities to test the boundaries of current case law through discussion with them of potentially difficult home education cases which they are contemplating bringing before the courts. (Section 6.22)

What would you say are the leading threats to home education and where are they coming from?

Historically, throughout Britain it has been over-zealous council staff in the mould of those Joy Baker struggled against for eight years before she prevailed. But in the last twenty years there has been a noticeable shift in the nature of the threat. In England the shift from local prejudice to a national campaign to change the foundations of education law was signalled by Ed Balls in 2009, who, as Secretary of State for Children, Schools and Families asked Graham Badman to review home education. The intention was to change public opinion by raising fears of home education being used as a cover for child abuse.

After that attempt failed there was something of a lull, but opponents of educational freedom began to undermine it once again by generating an unevidenced hostile environment. Then in 2017, Labour peer Lord Soley’s Private Members Bill opened the door to a deluge of negative comments in Parliament and the media, which resulted in the revised guidance which is now causing problems in Portsmouth and elsewhere.

In Scotland, the approach was different. I expect many Family Education Trust supporters are aware of the failed Named Person Scheme there. Amongst those who joined together to oppose this through the courts were Scottish home educators, who understood the unexplained dangers in what was sold to the public as benevolent policy to safeguard children. In her 2016 High Court judgement on the case, Lady Hale observed:

The first thing that a totalitarian regime tries to do is to get at the children, to distance them from the subversive, varied influences of their families, and indoctrinate them in their rulers' view of the world.

In my opinion all parents, not just home educators, need to seriously consider whether or not we are witnessing leaders around the world, not just in the UK, seeking to do that very thing without being honest with their electorates. The threats are widespread at present, with Wales and the Isle of Man having experienced more aggressive initiatives than those in England – though both of these have now been shelved for the time being.

In Europe, people may have heard that in October President Macron decided to justify banning home education ‘unless there are medical or health reasons’ by saying that it was being used by Islamists against the values of the Republic. His speech made clear what he sees as the purpose of schools: School should first and foremost instil the values of the Republic.

This echoes sentiments from a 2019 speech by Ofsted’s Chief Inspector at the Wellington Festival of Education where Amanda Spielman explained:

The founders of the common school movement in the United States in the 19th century wanted to mould fine upstanding citizens of the Republic...

It seems to me that home education is considered by some as a threat to their grand project, and consequently there is an international move to discredit it in the mind of the general public everywhere.

Has the UN Declaration on the Rights of the Child played any role in facilitating attacks on home education? This declaration has been ratified by every country, except the United States. Much of the opposition to ratification in the US came from home-schooling organizations who felt it posed a threat to families. Do you have sympathy with that view?

The more I research this, the more it seems that the questions raised by such organisations are looking in the right direction, but perhaps not deeply enough.

Recently UNICEF UK submitted a response to last autumn’s House of Commons Education Committee’s Inquiry into home education. In their introduction they describe themselves as ‘mandated by the UN General Assembly to uphold the UN Convention on the Rights of the Child (UNCRC) and promote the rights and wellbeing of every child.’ That suggests to me that they consider themselves as some type of international police force charged with ensuring that nations conform to the requirements of the UNCRC. The tone of their submission – and I would encourage your supporters to read it for themselves – doesn’t challenge my view.

For instance, praising both Germany and Sweden where home education ‘is allowed only in exceptional circumstances’ they suggest this is the very position the DfE should be moving towards in England. It is interesting to me that this is the same outcome which President Macron said in October that he wanted France to adopt.

However, I want to encourage people to dig deeper than just the UNCRC, because UNICEF is sister to UNESCO, which takes the lead role in the UN’s global educational programme. I recently looked at the ‘Mission and Mandate’ page on its website. At the top is this statement, which is the first clause in its constitution:

Since wars begin in the minds of men and women, it is in the minds of men and women that the defences of peace must be constructed.

When I read it, it struck me that this is not a statement of fact, but one of philosophical belief. That is confirmed in a 2018 article also found on UNESCO’s website. Citing Julian Huxley, its first Director-General, author Mark Goodale draws on Huxley’s 1946 text, ‘UNESCO: Its Purpose and its Philosophy’, describing it as a “blueprint for the new Organization.”

According to Goodale, Huxley charged UNESCO ‘with overseeing the emergence of what he described as a ‘single world culture, with its own philosophy and background of ideas.’ Huxley’s words are strong throughout his booklet and on page thirteen he asserted:

Specifically, in its educational programme it can stress the ultimate need for world political unity and familiarise all peoples with the implications of the transfer of full sovereignty from separate nations to a world organisation.

To me that is an idea which future generations should be encouraged to debate vigorously, rather than embrace uncritically.

One final point. Recently, UNESCO published its Global Education Monitoring Report 2020 entitled, Inclusion and education: All means all. I have not read the previous ones, but I have been told that this is the first time these annual reports have referred to home education. A statement on page 188 reads:

Homeschooling is an example of how parental preference for self-segregation can test the limits of inclusive education, despite the potential that distance and online mainstream education offer for inclusion.

It seems to me that the problem that organisations like UNESCO and UNICEF have with home educators is that they cannot be confident that parents will teach their children to embrace the philosophical ideals of men like Huxley and their Utopian dreams of a world at peace with itself.

To put it simply, those within these organisations believe that they need to rescue tomorrow’s citizens from the influence of their parents, and enforced, state-dominated schooling is their method of choice.

Do you think the current situation where many parents have been suddenly forced to supervise “school at home” could lead to more parents electing to home educate in the future?

I’m glad you used the phrase ‘school at home.’ What the majority of parents have found themselves doing over the last year is trying to deliver a school curriculum at home, with absolutely no preparation. Many have therefore found the experience very, very difficult.

However, reports are that a significant number have found having their children at home really beneficial. I have seen social media exchanges where parents are saying that their children have rediscovered a love of learning and that relationships within the family have also benefited. One group, the Scottish Home Education Forum, surveyed people who had turned to them for advice in the first lockdown, and just under half of those who responded said they planned to home educate when schools returned. One parent commented:

I have applied to home ed my 10-year-old. It’s something I've wanted to do for her for years and this situation just gave me the push I needed.

Another commented:

Lockdown gave me an insight into how much school was negatively affecting my son and what he was capable of at home.

If there was one website, you could recommend where people can keep up with what’s happening in the UK with regards to home education what would that be? There’s lots of good websites in the various different countries of the UK which offer advice to parents who want to home educate. The one which does covers the whole of the UK is called The HE Byte and the URL is he-byte.uk and that has links to most of the other websites and it also provides a running commentary on what’s happening politically across the UK and even carries stories from other places like South Africa and France.


The entire Family Education Trust Spring Bulletin is available as a PDF.