Portsmouth Home Educators’ Legal Action is Important for All Families, by Randall Hardy

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 my own home education 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 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 my own 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!

Original location of this article: Portsmouth Home Educators’ Legal Action is Important for All Families – No Nationalisation of Our Kids

Post Script

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.