Lord Hacking:

Moved by Lord Hacking

333A: Clause 32, page 64, line 28, leave out from beginning to end of line 3 on page 66.

My Lords, I rise to speak with a certain amount of repentance, because this Amendment is too much of an overreach and I regret drafting it in that form. At earlier stages in the Bill, relating to Clause 31—this goes to my Amendment 233A—I found it necessary to seek to have taken out of the Bill provisions going over one, two or three pages. I proposed that for Clause 31 because there was far too much information being sought of parents and far too much of an obligation on local councils, which were being compelled to meet some 13 requirements as part of the process.

This is an overreach on my part, and I apologise. It is very important that the local council has full powers to issue school attendance orders. As the noble Lord, Lord Storey, and I have mentioned, there is a great worry about the number of children—some 10,000 was the figure given—who are not having any education at all. Therefore, local authorities should be diligent about finding where these children are and issue the necessary number of school attendance orders.

I support Clause 32 until the top of page 66, where there is a requirement for the recipient of the school attendance order to provide the information within 15 days. That is a very tight timetable for ordinary citizens, who would not be at all familiar with receiving an attendance order, which, presumably, is rather a scary experience. I suggest it should be a longer period, but that is the only revision I am now seeking under this amendment.

My Lords, I was going to speak to Amendment 365, which is about appeals against a local authority’s decision not to revoke an attendance order. However, in light of the discussion we had about appeals in an earlier session in July, I had intended to withdraw this amendment, so I will not speak to it.

My Lords, I have several amendments in this group. My noble friend Lord Wei is concerned that we are not getting the balance right between the state and family, and I agree with him. It is the parents who have the primary responsibility for upbringing and the best interests of their child, and Intervention by the state should be justified only in exceptional circumstances and must be proportionate. My noble friend feels that Clause 32, as drafted, risks tipping that balance the wrong way. Families already tell us that school attendance orders cause stress, anxiety and a sense of powerlessness. One parent said they were forced to send their child to school against her will, where her needs were not going to be met. They said, “We felt trapped, unheard, threatened and fearful for our daughter’s safety”. Another described a child with severe anxiety and seizures who has thrived only when withdrawn from school.

For many, home education is not elective but a response to systemic failures. I am sure the Government are aware of that, and what a mess the SEND system is at the moment. Many of the parents who home educate are doing so in response to a less than ideal system. I know we tried to improve the system, and that this Government are going to have another go; it is not easy. We must expect a continued flow of parents who choose to look after their own child because the state is not doing a good enough job, and be humble enough to recognise that that deserves our support and not continual harassment.

Amendment 334 would change the duty on local authorities to serve a preliminary notice from “must” to “may”. In the context of all the other discretions that local authorities have, it would be sensible to allow them to see that issuing a notice in a particular set of circumstances would do more harm than good. It would allow them to focus on the child’s welfare and not force them down a rigid path.

Amendment 335 would require that all relevant support be offered before issuing such a notice. This goes back to an earlier amendment tabled by the noble Baroness, Lady Jones of Moulsecoomb. The first reaction of the local authority ought to be to ask if support is possible—can it help make this succeed?—as well as looking at whether school is a better option. It ought to come at this with support; families should not be threatened with orders without help being tried. The Square Peg campaign, supported by over 130 organisations, has called for a “support first” duty. One parent told us, “We asked for counselling and support, but what we got was a school attendance order. It only made my child’s anxiety worse”.

Amendment 338 asks in what circumstances a “best interest” test will be applied. Amendments 339 and 340 ask why just the existence of a Section 47 investigation is the trigger, rather than a consideration of whether that investigation has any relevance. Many Section 47 investigations are entirely unconnected to the suitability of a family for home education.

Amendment 341 looks at the question of how the local authority is in a position to judge best interests. What resources has the local authority got to enable it to do this? Why should the decision as to what a child’s best interests are be so hard for a parent to challenge? If it is not to be hard to challenge, what should the routes be?

Amendments 343, 344 and 345 are all concerned with the threat of a school attendance order not being a penalty for a minor infraction. I gather that the Government intend to put that in guidance, but it is important that parents understand that they are being judged by reasonable standards and are allowed to make ordinary mistakes—that they are walking a path and not a precipice.

There are quite a lot of tweaks in this section, which suggests that it is perhaps not quite right and that it needs to be rewritten in some ways.

We heard from the noble Lord, Lord Storey, just now that school is a very safe place, but I am sure he is well aware that school is not a safe place for everybody. Young people get bullied and it can be extremely distressing for some children, specifically if they have prior trauma, special educational needs or unmet needs, or have never attended school. There are all sorts of people for whom school is not the best and safest environment. I am trying to protect families who have already indicated that school is not meeting their child’s needs.

I hope we understand that local authorities sometimes judge in a completely erroneous way what families are doing with home education. We have discussed this, but I think Clause 32 is perhaps not fit for purpose.

Truth be known, I struggle with the whole issue of attendance orders. Of course we want as many of our children as possible to be regular attenders at school or an education setting. When they are not at school, they are not learning—apparently. However, there are all sorts of reasons—I have two relevant amendments, I think in this group, which highlight particular groups of children—for this. The issue of bullying in schools has been raised. That can have a huge effect on children, making them literally petrified to go to school. It becomes a vicious circle then, with the local authority taking action and issuing attendance orders. There are also children with special educational needs. I had a pupil who had an absolute phobia of school attendance—I almost could not believe it. His mother, a hospital nurse, had to drag him to school every day. The whole thing was a constant battle. We have to think very carefully about this. There are certain groups of people for whom waving the stick of an attendance order is not the right approach. We have to look at other ways of increasing school attendance, and we have to be mindful of the situation they are in.

I always believed that parents who took their children on holiday during school time were wrong to do so. However, I reflected that the quality time they may have with their parents—often, perhaps more importantly, their dad—was hugely beneficial for them as a family, and that they learned so much as well. I hope we think this through very carefully before we enact it on Report.

My Lords, this group includes a series of amendments, including several from my noble friends Lord Lucas and Lord Wei, on the Government’s proposed approach to school attendance orders.

His Majesty’s loyal Opposition believe it is important that local authorities are able to hold parents to account who are either not ensuring that their child attends school daily or not providing a suitable education at home. I appreciate some of the concerns that this could be seen as punitive by some families. Equally, if exceptions were introduced into the legislation, I worry that it would create a different risk, with inconsistent practice which is perceived to be unfair and could well be challenged in the courts.

I think, if I may say so, that the amendments to which the noble Lord, Lord Storey, referred are actually in the next group. I appreciate that, with so many amendments today, it is hard to keep track.

I turn to the risk of creating inconsistencies in the application of the legislation—I am thinking, for example, of Amendments 334 to 337 in the names of my noble friend Lord Lucas and the noble Baroness, Lady Jones of Moulsecoomb, and Amendments 372 to 374 and Amendment 392 in the name of my noble friend Lord Wei. While I understand that the Majority of the amendments in this group are probing amendments, I hope the Minister can reassure noble Lords who have tabled them that they are not necessary. I would be interested in whether she agrees with me that they could potentially create a different risk. On these Benches, we believe that Clauses 32 and 35 should stand part of the Bill.

With regard to the revised, shortened amendment of the noble Lord, Lord Hacking, there is an important balance to be struck. Of course one can argue about timing and the number of days, but, if a child is not getting any education, it is incredibly important that this is addressed in the most timely way possible.

To continue where the noble Baroness finished, a child receiving unsuitable education for as little as a day could be detrimental for their educational development. The measures in the Bill seek to make this process more efficient, minimising the time in which a child may be receiving unsuitable education.

We have heard many speeches that highlight the rights of parents to educate their children how they wish. Parental choice is important, but it is crucial to remember that with rights come responsibilities. All children have a right to a suitable education, and parents have a responsibility to secure that education for their children. Where parents fail in this responsibility, there must be a consequence for the parent and a swift route to suitable education for the child.

The amendments in this group are focused on the school attendance order process. I turn first to address the Opposition from the noble Lord, Lord Lucas, to Clause 32 standing part of the Bill. We believe that Clause 32 is essential. Without it, local authorities would have no power to act when parents refuse to comply with the children not in school registration duties, or where a child is not receiving a suitable education. Clause 32 allows local authorities to require school attendance where a child is subject to child protection investigations or plans and where school is deemed to be in the child’s best interests. This is a vital safeguard for some of our most vulnerable children.

As part of school attendance order proceedings, local authorities will be empowered to request to visit the child inside their home, so that they can fully consider the environment in which home education is being provided. Parents have the right to refuse the local authority’s request. If access is not given, this will be a relevant factor for the local authority to consider when deciding whether to serve an order.

The clause strengthens the current system by introducing timelines to make enforcement more efficient and to reduce prolonged periods in unsuitable education. It allows parents convicted of breaching a school attendance order to be prosecuted again if they continue to breach it, without requiring local authorities to restart the enforcement process. Aligning school attendance order fines with attendance fines will further incentivise parents to ensure children are registered at, and continue to be registered at, the named school.

I turn to Amendment 333A, tabled by my noble friend Lord Hacking, and Amendment 334, tabled by the noble Lord, Lord Lucas. Amendment 334 seeks to make the issuing of a preliminary notice when a child is not receiving suitable education, or when home education is not in the best interests of an eligible child, a discretionary act for local authorities. I will not respond to Amendment 333A, as I had intended to, given what my noble friend said. Making the process discretionary would create inconsistency. A mandatory preliminary notice ensures that there is definitive action when a local authority has reasons to believe that home education is not suitable for, or not in the best interests of, an eligible child.

Amendment 335, tabled by the noble Lord, Lord Lucas, would require support to be offered before a preliminary notice could be issued. In cases where concerns about the suitability of education are serious or urgent, local authorities must be able to act without delay. Making support a legal precondition could inadvertently shield unsuitable provision from scrutiny. However, I appreciate that the noble Lord is concerned that a formal notice can be daunting for a parent to receive. We will consider what further guidance can be issued to parents and local authorities as part of the implementation of these measures to ensure that they can engage confidently with the process.

Amendments 338 and 341, tabled by the noble Lord, Lord Lucas, seek to prevent local authorities considering whether it would be in an eligible child’s best interests for them to receive education by regular school attendance as part of the preliminary notice for school attendance orders. It is important for me to explain the reasoning behind the best interests test in this context. Currently, local authorities have no recourse to require a child on a child protection plan or inquiry to attend school unless they can identify that the child is receiving unsuitable education. The best interests test requires local authorities to take action when they identify children subject to child protection inquiries or plans whose interests would be best served by regularly attending school, regardless of whether the education provided at home is considered suitable. Statutory guidance, Working Together to Safeguard Children, provides clarity on what making best interests decisions means and will be further updated as part of the implementation of these measures.

Amendments 339 and 340, tabled by the noble Lord, Lord Lucas, seek to remove or limit the ability of the local authority to issue a preliminary notice when a child is subject to an active Section 47 child protection inquiry. Local authorities will be able to issue a preliminary notice under the relevant subsection only if it appears to them that the child subject to the Section 47 inquiry is not regularly attending school and that it would be in that child’s best interests to do so. A preliminary notice will not automatically result in a school attendance order.

It is also important to remember that such inquiries take place because Section 47 of the Children Act 1989 puts a duty on local authorities to make inquiries where it considers that a child is suffering, or is likely to suffer, significant harm. These formal inquiries are not initiated lightly; their use signals serious concerns about a child’s welfare. Section 47 inquiries should not be initiated based purely on the fact that a parent is home-educating, as we are clear that home education is not in itself an inherent safeguarding risk. It is vital that local authorities have the means to gather information on the circumstances of at-risk children and determine whether their interests would be better served by regularly attending school.

Amendments 342 and 346, tabled by the noble Baroness, Lady Jones of Moulsecoomb, and Amendments 336, 337, 343, 344, 345 and 347, tabled by the noble Lord, Lord Lucas, seek to remove the ability of local authorities to issue a preliminary notice when a parent has not provided information, or has provided incorrect information, for a children not in school register. This power is discretionary, and local authorities should not normally issue a preliminary notice in response to a genuine error by a parent but instead continue informal inquiries. However, without a consequence on parents for not providing the required information, the duty on them to provide information would be, in effect, redundant. This duty on parents is necessary to ensure that local authorities have the required information to ensure that education is suitable and safe. Local authorities must act promptly once it appears that action should be taken so there is no delay in providing appropriate support to children who need it. The timeframes in the school attendance order process strike the right balance between urgency and operational practicality. Removing them could lead to inconsistent and slower responses across different authorities, resulting in children potentially spending more time in unsuitable education.

I recognise that the noble Lord, Lord Crisp, does not seek to press his Amendment 365. It would perhaps be best for me to deal with the set of amendments in the name of the noble Lord, Lord Wei—which concern penalties for parents in a range of circumstances—by writing to noble Lords with some assurances about each of the amendments, rather than going through them all in this debate.

Finally, I address the stand part notice from the noble Baroness, Lady Jones, which seeks to remove Clause 35 from the Bill. Clause 35 introduces Schedule 2, which makes consequential amendments to existing legislation so that the new school attendance order process for local authorities in England and Wales is reflected in the Children Act 1989, the Education Act 1996 and other relevant legislation. The clause is necessary to ensure proper functioning of the process, and I urge that it stands part of the Bill.

For the reasons I have outlined, I hope that noble Lords will feel able not to press their amendments, and I urge that Clauses 32 and 35 stand part of the Bill.

I am grateful, as ever, for the Minister’s responses, but I would be additionally grateful if she could write to me, between now and Report, to give me a much clearer idea of what the parental experience will be. For example, when faced with a best interests determination by a local authority that the parents consider to be seriously damaging to their child, how do they appeal it? What is the process for taking that through? Assuming that the local authority has it wrong, what is the full process that results in the parents being able to help the local authority understand the reality of their child’s circumstances and where their best interests really lie. With all the help that has been given, I still fail to get a grip on what that process will be and will feel like, and I would love to share that with home educators.

Is the noble Lord clear that the best interests requirement relates to cases where children are subject to child protection inquiries or plans?

Yes. It is only in about half of Section 47 where one would judge that that is a real problem. I understand and accept what the Government are saying about the need not to find that we are not covering children whom we need to cover, and that means that there are children going through the system for whom the dangers are not absolute, but if, for example, the child has deep school anxiety, or has really been bullied in the school, or the school has taken against them for some other reason and they have a horrid experience, and the local authority says, “Go back in”, what is the experience of the parent in appealing that? I do not have the grip on the details of the system that I would like.

I will write about that specific point.

My Lords, provided that the noble Lord, Lord Lucas, does not want to make any more interventions, I will take this opportunity to close the debate.

Your Lordships heard that I was repenting; I pleaded guilty to overreach. I did not move this Amendment, but because an enormous number of amendments are listed after Amendment 333A, I felt it was right that all Members should have an opportunity to speak to any of the amendments in this group. Having said that, I have no hesitation in withdrawing this amendment and thanking my noble friend the Minister for her very careful and adequate replies.

Amendment 333A withdrawn.

Amendments 334 to 347 not moved.