Second Reading

Part of Children, Schools and Families Bill – in the House of Lords at 8:55 pm on 8th March 2010.

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Photo of Baroness Deech Baroness Deech Crossbench 8:55 pm, 8th March 2010

My Lords, I, too, wish to address the issue of home schooling, which is covered by Clause 26 and Schedule 1. There has been massive representation on this issue from home educators who object to registration and see the provisions as taking away the right to educate at home, whereas it is merely a system of registration and not a very onerous one at that. We do not know what we do not know. There are no firm statistics about the number of children receiving home education, although it is commonly said to be 80,000. We do not know how representative in terms of quality and quantity the home educators who have flooded their MPs, and my blog site, with their views are. They cannot amount to more than 6 or 7 per cent, but the rage and resentment they express, their mishmash of ideological views, their rejection of state interference, their indifference to the rights of the child, their accusations of totalitarianism and their superiority over those who would like to help the child do not paint a good picture of home educators. They made me determined to speak up for the rights of the child, when I had taken hardly any notice of home education until recently. I have now immersed myself in the topic.

Registration is to be welcomed, together with the parent's statement of plans for the child's education, but I have seen no method in the Bill for ensuring that every child who is not being educated at school but, purportedly, at home, is registered. Only those children whose parents apply for registration will be registered and the entire scheme could be scuppered by a failure to do so. I would be grateful to hear from the Minister whether the children's register, ContactPoint, can be used for this purpose; granted that there can be no accurate assessment of which children should be receiving education at five unless all those born in and who arrive in England after birth are included and tracked.

The existing law is weak. Section 7 of the Education Act 1996 states that parents have a duty to secure efficient full-time education suitable for their child. There can be no duty in law unless there is a correlative right, and no right without a correlative duty to secure that right. Children have rights. That is the most important principle of all. It should be underpinning this Bill and must be conveyed to home-educating parents. The rights are clear. Article 28 of the United Nations Convention on the Rights of the Child says that states must undertake to ensure that primary education is compulsory for all and that different forms of secondary education should be available and accessible to every child. Article 29 says that education in all institutions must conform to standards laid down by the state. Article 31 protects the right of the child to play and recreation, and to cultural and artistic activities. Article 12 says that the child has the right to express his or her views-a right which is set to be denied if this Bill does not permit the child to be seen alone by an inspector but only in the company of the parent.

Article 2 of Protocol 1 of the European Convention on Human Rights also grants the right to education while respecting the rights of parents to have their children educated in accordance with their views. The European Court has held that this, of necessity, implies state regulation of the education that the child receives. The court held that Germany was entitled to ban home education. It is the duty of home-educating parents to secure for their children the education pledged in international treaties; the parents do not have stand-alone rights to determine that education in any way that they wish without state regulation.

Since home education has no minimum hours, no curriculum and no examinations, there can be no assurance that home-educated children will receive suitable education. There are no statistics about their GCSE and A-level results, or even their 3R competence, let alone university entrance; and the Badman report called for such research to be carried out. There can be no guarantee that home-educated children will receive reproductive, personal, social, health and economic education, as is compulsory-or will be-for others over 15; nor will they receive any guarantee of careers guidance. There is no assurance that migrant children who are being educated at home, even if they can be tracked, are learning English.

I have blogged about this on your Lordships' website, lordsoftheblog.net, along with the noble Lord, Lord Soley, and each of us has received about 200 replies. Some use arguments that must have been used in the late 19th century to oppose the introduction of free and compulsory primary education. Others, understandably, withdrew children from school because of bullying, special educational needs, or poor local schooling. Others have a belief that children can just learn autonomously without being taught. I wondered how this worked with, say, physics, and fear that those children are being experimented on in a way that may blight their only chance in a lifetime to be presented with the knowledge and life skills that they will need.

Some of the home educators expressed contempt for the state in all its manifestations. None mentioned the welfare of the child. Some home educators were clearly dedicated and successful, and I could see no reason why they should not register. They seemed overwhelmingly middle class, and it struck me that the provision of home education must be an expensive effort, involving not only the likely sacrifice of a career outside the home by the educating parent, but, as has been mentioned, payment for all the outings and extracurricular activities that are usually provided by the school-not to mention the examinations and equipment. The home educators were insistent that their children had socialising experiences, although whether it is correct to include trips to the supermarket, as one did, or learning French with a grandfather learning at the same time, was open to question.

One does not know how representative they are, and the level of resentment struck me as worrying in itself. It cannot be ruled out that girls in particular, possibly from cultures which expect them to marry early and never work, are denied the opportunities they would receive in school, and might be sent away or into forced marriages, with an even smaller chance of rescue than exists at school. I am not for a moment conflating child abuse with home education, but there is a need to see the child. In albeit very different circumstances, the NSPCC recently called for the law to be changed to allow social workers to see children at risk alone. In Britain, we pride ourselves on the law of habeas corpus. Habeas corpus must extend to our children as well.

It is inadequate that the local authority will be able to see the child only once a year. I should have thought that it would be better-albeit expensive, I appreciate-to produce the child every quarter or six months. The child should have the right to talk alone to the inspector. Fear of strangers is no excuse; or rather that is the very excuse that has been used when there have been failures to meet a child's needs which could have been avoided, had that child been produced. A child cannot go through youth without meeting doctors, dentists, repair men and so on. Two weeks' notice of a visit by the inspectors in the Bill is possibly too long; one week should be adequate, and in cases of concern there ought to be the right to visit without warning. Where a parent appeals against refusal to register, the child should be sent to school at once and not allowed to continue at home, pending appeal.

In sum, our registration system will be weaker than that of most countries. Most US states have a more structured system, and opting out is forbidden in Germany. Your Lordships should not be deterred by the strong wording of the home education lobbyists. There needs to be a way for the home-educated child to be seen and heard, for samples of his or her work to be produced and for rigorous tracking of existence and outcome. I therefore strongly support this part of the Bill.

The hour is late, and I will just say a couple of words about media access. Clauses 32 to 42 and Schedule 2 arguably do not belong in this Bill. They deal with a system for allowing more public knowledge of what goes on in family courts, which has been the subject of controversy. There are arguments for privacy, and there are arguments about knowing what goes on-especially when apparently harsh decisions leak out into the public. For a year, reporters have been allowed to sit in on family proceedings, but only allowed to report the gist of those proceedings. The provisions of the Bill would allow authorised publication; this is rather complicated and time might be wasted on deciding what it is. It is also feared that only one side might be reported as more attention-grabbing-that is the allegations reported, and not the rebuttal.

Clause 40 allows for publication of sensitive personal information to be brought in. It will be reviewed after 18 months, but arguably grave damage might be done in the mean time. There is, I believe, no impact assessment yet; this will be carried out only on review. Nor has there been an impact assessment of media access to the family courts so far. However, the Children's Commissioner for England has funded research to establish children's views on media access and transparency in family proceedings. It will not surprise your Lordships to learn that by and large the children interviewed were opposed to the media being allowed into family courts to hear their cases, because they would be less willing to talk about what had happened to them, they were concerned that their identity might be revealed, and, understandably, they did not trust the newspapers with sensitive information.

The children wanted their views to be considered before deciding whether or not the press should be admitted. This reflects Article 12 of the UN Convention on the Rights of the Child, which I referred to earlier: the child has the right to be heard, "in proceedings affecting them". One cannot therefore but agree with the view of the Law Society: it may be wrong to introduce this new provision about publication of sensitive information in this last-minute Bill. The system of public access and publication should be reviewed from the point of view of cost and effect, and for now, it says, Clause 40 should be deleted.

The principle of the welfare of the child should guide us in deciding both the points I have raised; the welfare of the child should decide the controversies in the Bill.

Annotations

Roxane Featherstone
Posted on 9 Mar 2010 2:35 pm (Report this annotation)

Dear Baronness Deech,

Home educators as a group are well aware of the natural and legal rights of children. This is, for almost all the home educating families I know (approx 200 personally - most of whom do not "lobby" either MPs or Lords), a given, an assumption about how humans work that barely merits a mention but which informs almost everything they do.

Most are familiar with the UNCRC and the HRA, and all the ones I know personally take the rights of the child extremely seriously. It is highly likely that as a group, home educators take the rights of children more seriously than any other group of parents anywhere.

It is precisely because of the rights of the child that the huge majority of home educators provide an education that actually suits the individual child - unlike the quarter of parents whose children fail in schools.

The question that arises at this point: why, if HEors are to be pursued under the remit of standards of suitability of educational provision, are schooling parents not to be similarly pursued by the state?

Further with regard to the rights of the child, home educators take the views of their children very seriously and seek creative solutions to solving their childrens' problems . For example, if a child tells a parent that they are miserable in school, the parent by deciding to home educate, does something effective to solve the problem and thereby sets a good example of creative problem-solving. On the other hand, a parent who continues to force their child into a miserable situation at school cannot possibly manage this, and instead is likely to instil the lesson of learned helplessness in their child.

Again it would be fair to ask why HEors are to be pursued in case they are not listening to the voice of the child, when schooling parents will not be similiarly pursued, and when in fact, in most cases, home educators already manage this extremely well?

It is precisely because we listen to our children that we know that a huge number of them

http://daretoknowblog.blogspot.com/2009/03/results-of-poll.h...

would far rather not have to submit to what will in fact be a simply terrifying ordeal. You assert that children should not be afraid of meeting an inspector, and yet I would say it would be irrational not to fear the visit, for the child will most likely be very well aware that the whole of his life hangs in the balance upon the all-powerful subjective assessment of a near-total stranger.

No schooled child would be forced to submit to such an all-embracing and yet ill-informed judgement. Once again it seems, home educators are to be held to a far higher standard than schooling families.

If we were dealing with objectifiable qualities, there may indeed be less to fear. However, the suitability of educational provision is not so easily established, and may well be a source of conflict between LA inspector and parent, between someone who barely knows the child and someone who intimately understands him, between someone who may have only a tenuous grasp of how individualised learning can work in the home, to someone who has years and years of seeing autonomously educated children go on to achieve top grades at top universities.

For should you doubt it, let me testify to the fact that all the autonomously educated young people I know of who have reached the age, have gone on to become motivated learners in further education. One entirely autonomously educated young person we know won top prizes in Maths and IT at one of the top universities. (His parents are not mathematicians, but we live in the Information Age). Another boy I know who was failing miserably in a private school, but was then very happily autonomously educated, is now winning numerous prizes at his university. Another teen who left state school at 11 completely unable to read and write, is now doing very well in college. All the others I know are doing very well indeed. I suspect that being treated respectfully throughout their youth, and with an expectation that they will behave responsibly predisposes them well to the challenges of higher education. Further, from what I can gather on email lists, my experience in this area is replicated throughout the country.

I have been led to understand that you are an ethicist, and as such it might be of interest to know that autonomous education is based upon sound ethics and Popperian epistemology. Further explanations with regard to the underpinnings of autonomous education may be found here:

http://www.takingchildrenseriously.com/node/48

Autonomous education does not involve abandoning one's child to his uninformed whims. Parents are on hand to offer their best theories. A child in such a family tends to take the views of their parents seriously, for they know that there parents' opinions will not be spuriously enforced, but they also know that their parents may be wrong and their views should be subjected to criticism to see if they hold up to reality. The value of truth-seeking and criticism and for acting upon seemingly best theories is demonstrably made available to autonomously HE children.

I would urge caution and consideration in the proposals made by the government. For example they should be aware that proposals to summarily return children to school should the parent fail in some regulatory matter, will consign many children to misery and some who may have been withdrawn from school under the threat of suicide, will almost certainly take their own lives.

Surely legislation that concerns children should be about the preservation of their lives and not about giving licence to state officials to bully and harass them to their deaths?

Should there be real concerns about individual families, legislation exists to hold them to account. In the meantime, do not waste money the state does not have inspecting tens of thousands of otherwise well-functioning families, for it will serve no purpose and almost certainly will do a considerable amount of harm.

Ruth Deech
Posted on 9 Mar 2010 10:11 pm (Report this annotation)

It is insufficient to "take children's rights seriously", as home educators claim they do. Rights have to be enforceable by an authority outside the two parties involved, otherwise one is subject to the other. That is why we have a Bill of Human Rights. The same is true of "listening to the child's voice" - there has to be a third party ensuring that that is the case.

Roxane Featherstone
Posted on 10 Mar 2010 10:39 pm (Report this annotation)

Dear Baroness Deech,

I am not sure that I follow this entirely. Why if a right is respected, is it in some way insufficient if it is not enforced by an outside authority?

If this were the case, then plenty of rights as enshrined in the ECHR and the HRA would presumably be insufficient since most of them are not routinely enforced by a third party.

It also seems that certain rights are to be disrespected in the so-called service of enforcing others, since the child's right to privacy and freedom of association is being over-ridden if the inspector insists on inspecting him against his will.

Plus, what would happen if the inspection regime fails as Ofsted so clearly fails to do in our local secondary school, where according to them, educational and disciplinary levels are good, despite the fact that a large number of children do not get any GCSEs, a certain percentage form gangs, deal hard drugs and smash each other's heads against bathroom mirrors. Is the natural consequence of the HRA as you perceive it, that there should be an inspection of the inspectors, ad infinitum?

And who should inspect the inspectors should a HE child be forcibly returned to school where they then fail to thrive, start to self-harm again, or even commit suicide? Or do the inspectors somehow get away with having to actually respect children's rights themselves?

Heidi de Wet
Posted on 17 Mar 2010 11:15 am (Report this annotation)

The government has chosen to propagate the view that there are such things as children's rights and parent's rights which are in opposition to each other. This is convenient if, as the Baroness indicates above, the government wants grounds to assume a policing role between children and parents in every family, whether functional or dysfunctional.

This is not the picture that ordinary, law-abiding citizens see. Children have all the rights that any other person has; in addition they have a few special rights that exist only because they lack the adult capacity to fend for themselves. It is the legal duty of the child's guardian to ensure that the child is provided for in these matters, and to protect the child's rights until such time as the child is capable of protecting themselves.

Note that this is a duty, not a "right". The government is trying hard to cast Section 7 of the Education Act as a "parent's right", but it is not - it is quite unambiguously framed as a duty to educate.

Unless and until the natural guardian of the child (normally the parent/s) fails in their duty to the child, the state has neither the duty nor the right to intervene in the family. Attempting to do so when there is no reason to suspect failure or any risk of harm to the child subverts the whole idea of guardianship and makes the state the guardian of first resort, not (as it should be) last resort. In the government's own rhetoric: "Parents bring up children, not government."

Parents who are fighting the government initiative to license home education do so precisely out of their concern for their children's rights. Children, like any citizen, have a right to privacy in the home: this Bill would subject all home-educated children to forced home inspections. Children, like any citizen, have a right to privacy of their own person: this Bill would subject any home-educated child to forced interviews alone, at the sole discretion of the inspector. Children, like any citizen, have a right to the privacy of their family life, correspondence and creative works: this Bill would force inspection of all of these under the guise of inspecting the child's education, because outside school, the majority of children's education is inseparable from the details of their daily lives. All these draconian invasions of privacy will be enforced by the threat of immediate incarceration in a school of the local authoriy's choice.

Parents are outraged at the government's flagrant disregard for their children's rights, and are refusing to countenance these measures. Indeed, when we look at what are commonly recognised as "rights", we can see that the vast majority of them concern the protection of the citizen from the apparatus of the state. The Baroness says rights cannot be policed by the two parties involved; this suggests that the policing of the majority of rights ought to be done by a third party who is neither the citizen nor an envoy of the state. Surely, in the case of children's rights, this is the natural role of the parent. Yet, when parents voice their opposition to the state's actions, they are accused of not caring about the very rights they are trying to enforce.

It is clear that the government has no interest in "children's rights" or "listening to the voice of the child" outside the very narrow arena of home education. If they did, there would be no such thing as truancy laws. Tens of thousands of schoolchildren express their dissatisfaction with their schooling every day, by the most direct method possible - unauthorised absence - but instead of addressing the real problem, the unsuitability of the education being provided, the only response from the state is to crack down with fines and jail terms for the parents.

If the Bill were to extend the proposed measures to all children - that is, if all children, whether in or out of school, were to be interviewed alone once a year, checked for signs of abuse, asked whether they liked the form of their educational provision, assessed against individual educational goals for the year, and then constrained to attend the form of education (whether a named school or home education) that the inspector deemed most suitable, over any protestation by the parents - then it would still be an abominable piece of legislation, but it would be possible to believe that it was motivated by genuine concern for all children. As it is, it's a transparent ploy to distract attention from the state's failing in this arena by demonising and oppressing a minority - the very thing that the concept of "rights" evolved to prevent.

Roxane Featherstone
Posted on 17 Mar 2010 3:42 pm (Report this annotation)

It occurred to me that this:

http://www.theanswerbank.co.uk/Law/Question873739.html

might be of interest to the Baroness as it serves as a demonstration of what already happens to home educators under the current (more proportionate) legislative regime.

It might help explain why home educators resist bureaucratic bullying so forcefully - we quite naturally defend our childrens' lives with an undivided passion.

We hope she will now understand why, should Schedule 1 pass, children will be even more likely to die, since LAs will be able to return children to school at their own pleasure, with the parents having no recourse to the courts.

Roxane Featherstone
Posted on 29 Mar 2010 2:04 pm (Report this annotation)

"We hope she will now understand why, should Schedule 1 pass, children will be even more likely to die, since LAs will be able to return children to school at their own pleasure, with the parents having no recourse to the courts."

There is a fuller explanation of this point here:

http://daretoknowblog.blogspot.com/2010/03/will-csf-bill-kil...