Legal changes are afoot in relation to home schooling. Dr David Sykes and Dr Samantha Davey look at the issues for local authorities and analyse what is in store.
Parents have a statutory duty to ensure that their child accesses a suitable education between the ages of 5 and 16. Most parents choose to send their child to school to be educated, but for a variety of reasons, a number of parents decide to take full responsibility for their child’s education and educate their child themselves, at home. This is called opting for home education. A decision to home educate can only be made by the parents of a child. Home education is considered by law to be equal to an education that is provided by a school. Parents who elect to home educate are not required to have formal teaching qualifications. Such parents receive no financial support from their local authority. Thus, where parents wish for their child to sit public examinations they must make their own arrangements and pay the exam fees themselves. This article is not however about the autonomy and rights of parents to educate their children at home, but rather a review of the current law concerning regulation of home educated children and the need for greater legal and practical protection for such children, which includes an examination of the current private member’s bill going through its Parliamentary stages.
It is fundamental to understand that the law is clear that education is compulsory but school attendance is not. The freedom to educate children at home forms an intrinsic and essential element of educational provision in our society, a right which has been protected by a succession of Education Acts. The fundamental piece of legislation regarding education in England and Wales is the Education Act 1996 (a consolidating Act which incorporates the 1944 Education Act and later legislation).
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It should be noted that this article does not deal with home education of children with special needs. It is understood that two thirds of home educated children with special needs do not have a statement or plan. A child has special needs if they have a ‘learning difficulty’ which calls for ‘special educational provision’ to be made for them. A ‘learning difficulty’ is where a child has a significantly greater difficulty in learning than the majority of children in their age or has a disability which prevents or hinders them from making use of educational facilities of a kind generally provided for children of the same age in schools. Disability is not in itself a disability.
The present law
Parental rights and duties
It is essential to understand that the parent’s right to home educate their child extends to imparting to the child their own philosophical, spiritual or religious beliefs. Section 7 of the Education Act 1996 states:
‘The parent of every child of compulsory school age has a legal duty to ensure that he (or she) receives efficient full-time education suitable to his (or her) age, ability and aptitude and any special educational needs he may have either by regular attendance at school or otherwise.’
There is also a European aspect in that the second sentence of the Protocol 2 Article 1 of the European Convention of Human Rights states in mandatory terms:
’In the exercise of any functions which it assumes in relation to education and teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions' 
The educational philosophy of the parents must be consistent with section 7 of the 1996 Act.
The Education Act 1996 does not define the words, ‘full time’, ‘efficient’ or ‘suitable’ referred to in section 7, however, case law does provide assistance in some respects in the context of home education, ‘efficient’ has been defined broadly, but arguably circular as an education that: "achieves that which it sets out to achieve’ and a ‘suitable’ education as one that ‘primarily equips a child for life within the community of which the child is a member, rather than the way of life as a country as a whole, provided it does not foreclose the child later on in life being able to adopt some other form of life if he or she wants."  The law does not specify how many hours represent full time education, but normally such reference is made to the fact that formal teaching at school ranges between 22 and 25 hours a week for 38 weeks a year. There is however no legal basis for such time frames and can be different (higher or lower) according to the circumstances. A parent does not have to stick to a school-type fixed timetable or follow school terms, nor in fact adhere to the National Curriculum. It may of course be useful to use the National Curriculum closely or as a guideline, in combination with a teaching approach of letting their child’s interests dictate their learning i.e. scientific or artistic bent. Further, there is no obligation to reproduce school type peer group socialisation.
A parent is not excluded by law from home educating a child with special needs who has a statement of educational needs, but the consent of the local authority is necessary if a child attends a special school. It is illegal for a local authority to refuse consent unless they are genuinely concerned about a vulnerable child, for example if they think there is a risk of abuse or neglect. If the local authority refuses to give consent, a parent must obtain a direction from the Secretary of State to remove their child from the special school. The local authority will continue to hold annual reviews throughout the lifetime of the statement. If a child has an educational, health or care (EHC) plan a parent must inform the local authority if he/she is going to home educate. Thus such children are identifiable, but there may be as indicated above be children who have undiagnosed special needs - arguably with no statement, despite additional needs, children will not be better protected than any others.
As indicated in the opening paragraph a parent can home educate their child at any stage and does not have to have to be a qualified teacher or have any teaching experience. In early years this may not be problematic if parents possess at least basic literacy and numeracy skills. However, parents may struggle to provide an education which will be consistent with the National Curriculum and may find it challenging to educate their child in more specialised subjects once children reach secondary school. Either parent can home educate a child without the other parent’s consent, if their name is on the child’s birth certificate. This can however be challenged in court. However, there appears to be no specific restriction on who may provide home education for the child. Grandparents and other relatives, friends of the family and private tuition services may also provide home education, with the consent of one of the parents.
The area we are concerned with is those children who are not known to the local authority and are therefore a beneficiary class ‘under the radar’ as it were. In a previous article reference was made to whether local authorities are in a fiduciary relationship or some sui generis type relationship with their service users and a conclusion reached that fiduciary duties could only apply, because of the core ingredient of loyalty, where there was a definable beneficiary class. In respect of home educated children this class is definable, but problems may arise because of identifying who is comprised in that class, particularly regards shifting service users, such as members of the travelling community. Notwithstanding we argue that local authorities have an overall stewardship role, based on an ethic of care not only in respect of their property resources, but stewardship extending to the person, which includes home educated children.
The duties of the Local Authority
Local authorities have a statutory duty under section 436A of the Education Act 1996, (inserted by the Education and Inspections Act 2006), to make arrangements to establish the identities, as far as it is possible to do so, of children in their area who are not receiving a suitable education. If the child identified as not receiving education is being home educated, this will be recorded on the local authority’s data base, but no further action will be taken. There is no presumption that state education is the best form of education for the child or, conversely that home education is unsuitable. Although local authorities have a duty to safeguard and promote the welfare of children under section 175(1) of the Education Act 2002, they have no statutory power to enter the home of the child or otherwise see children in their own home environment, unless there are grounds for concern (section 17 and 47 of the Children Act 1989). Local authorities may, for example, offer courses and workshops for parents to attend. However, attendance at these is strictly voluntary.
However, sections 437 to 443 of the Education Act 1996 place a duty upon local authorities to take certain actions if it appears that a child is not being properly educated and they can serve a written notice on the parent requesting him/her to satisfy them within a stated time frame that the child is receiving such education (s.437(1)). The case of Phillips v Brown is relevant because it established that a local education authority (LEA) may make informal enquiries of parents who are educating their children at home to establish a suitable education is being provided.
Determining suitable education
- Local authorities may not insist on home visits
- They have no right of entry into the home or
- Check upon the child’s education or the parent’s provision (unless registered at the local authority)
Comments on home education
Evidence shows a considerable number of children being home educated who are therefore in a vulnerable category and need some protective measures to be in place. Reliable statistical information is however difficult to obtain , mainly because local authorities are unable for one reason or another to provide data over a sufficient length of time. Numbers of children who are electively home educated are not routinely captured via a national data return. Lack of such information makes empirical studies difficult.
The BBC conducted a survey  this year and found that "across the UK 48,000 children were being home educated in 2016-17, up from about 34,000 in 2014-15." The BBC contacted councils in England, Wales and Scotland and the Northern Ireland Department for Education for figures on home schooling and stated that "Of the 177 authorities that were able to provide data for all three years, 164 reported an increase." The Isle of Wight was found to have the highest proportion of home-educated pupils, almost 1 in 50.
The Association of Directors of Children’s Services (ADCS) in England has done a great deal of valuable research (including statistical) in the area of this ‘invisible’ grouping and wants parents and carers who home-educate to be obliged to register with their local authority and for inspectors to be able to take action if they find a problem. Its report of December 2017  is highly recommended reading and provides information on areas with the highest proportion of home educated children for 2016-17.
Needless to say, the absence of supervisory regulatory powers for the local authority in which the home educated child lives has caused adverse comments over a number of years, including judicial remarks. For example, in the case of Re S (a child with disabilities)  Family court judge Lynn Roberts criticised the laws surrounding home education. She said that the case highlighted issues that made her doubt whether the "right of the parents to opt for home education is compatible with the rights of their children in many cases".  Judge Robert’s further opined: "The state must do much more to establish that the child is being educated according to his or her needs and that the child is not otherwise neglected or having his or her needs unmet."
Judge Roberts also commented on the difference in inspection powers of councils towards school-educated children and home-educated children. She stated:
‘It is of great concern to me that it is possible for a child who is home educated not to be seen in his home environment. It cannot be right and I shall want those responsible for home education locally to consider this….it cannot be right that a school educated child has his school premises inspected but that a home-educated child does not have his home inspected. As this case shows, such a child can be being educated in a harmful environment and the state neither knows nor acts for years. It must be, in my judgment, incumbent on the home education service to visit and assess a child in his home environment.' 
Apart from judicial concerns over the lack of protection for home-educated children, Barry Sheerman, former chairman of the education select committee in Parliament and trustee of the National Children’s Centre, states: "The law severely and potentially dangerously, curbs local authorities’ ability to monitor home–educated children." The NSPCC has called on the government to radically increase powers to monitor the welfare of home-schooled children. It should be noted that Ofsted has no power to monitor or inspect home education.
A way forward - statutory controls
Home Education (Duty of Local Authorities) Bill (HL Bill 98)
Insufficient regulation has been identified as indicated above. These concerns have been taken up in the current private members bill introduced into the Lords by Lord Soley. It only applies to England and Wales. It is important to spend some time examining the main thrust of this anticipated legislation (Brexit permitting) being on the statute book. The bill has passed through the House of Lords and received its first reading (no debate) in the House of Commons with its second reading scheduled for 26th October 2018. Its recorded statutory purpose is to ‘Make provision for local authorities to assess the educational development of children receiving elective home education; and for connected purposes.’ The bill contains four clauses. The bill preserves the principle of parental choice which is still paramount and will not affect a parent’s right to choose what they feel to be the most suitable educational approach. The law will therefore continue to respect diversity in education.
Clause 1 Local authorities' duties
A specific duty to:
- assess the educational development of children receiving elective home education in their area (section 1(2)(1))
- provide advice and information to a parent if the parent requests it (section 1(2)(2))
- assess annually each child receiving elective home education (section 1(2)(4)). Under section 1(2)(6) there is reference to what form the assessment of the educational development of the home educated child may take, including
- 1(2)(6)(a) visiting the child’s home,
- 1(2)(6)(b) interviewing the child,
- 1(2)(6)(c) seeing the child’s work and
- 1(2)(6)(d) an interview with the child’s parent. (our emphasis)
It will be noted that paragraphs (1) to (d) in section 1.2(6) are expressed in a discretionary manner and thus allow local authorities’ flexibility regards monitoring the home-educated child’s educational development by means of a combination of visitation, interviewing (both parent and child) and review of the child’s work.
Comments on the Bill
Strangely inserted in section 1(2)(3) under local authorities' duties. The parent of a child receiving elective home education must register the child as such with the local authority. Importantly under section 1(2)(7) such a parent must provide information relevant to the assessment to their local authority when requested. Thus a parent will have a specific duty of registration and to supply information to its local authority.
Parent is not defined in the bill. Will the term include those who may be in loco parentis with the child, such as grandparents? The bill should be clear on this point. It may be helpful to briefly mention the way in which parents are defined in other relevant legislation, such as under the Education Act 1996 and Children Act 1989.
Education Act 1996
Under section 576 a ‘parent’ in relation to a child or young person is defined as:
- The natural parents of a child, whether they are married or not
- Anyone who although not a natural parent has parental responsibility for a child
- Any person, who although not a natural parent, has care of a child
Parental responsibility (PR) is defined in section 3(1) of the Children Act 1989 (CA 1989) as all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to a child and his property. The following persons or bodies can have or acquire parental responsibility. This will include, the biological mother,  the father,  a guardian, the local authority itself if named in a care order for a child,  a person who has adopted a child, or someone who holds a child arrangement order , or an emergency protection order .
Assessing the educational child’s development
This is a specific duty on local authorities under section 1(2)(1) as well as being the stated purpose of the enactment. A concern is whether the term ‘educational’ will be defined in a very strict scholastic way or will the approach be more holistic and therefore include wider assessment of the child’s social skills - a factor that may be important where a child is not exposed to other children or groups. Looking at the child’s work may give clues to development or otherwise in this area, but it would have in our opinion been preferable to have added social skills assessment to the discretionary criteria in section 1(2)(6). It may be that this will be addressed in the guidance notes to be issued by the Secretary of State (presumably of Education, but not stated in the bill), although it is noted section 2(2)(a) only refers to supervised instruction in reading, writing and numeracy.
It should be noted that the bill does not in any way alter the principle of parental choice which is paramount. Thus the legislation will not alter the parents’ rights to choose what they feel is the most suitable educational approach for their child. The law preserves respect for diversity in education. There is of course no ‘correct’ educational system - children learn in different ways and at varying rates of progress.
The bill makes no reference to fostering the social skills of a home schooled child. We consider that section 1(2)(6) that is expressed in a discretionary manner under (d) should after ’an interview with the child’s parent’ also state and the child’s circle of friends and peer groups and the appointed leaders of any external clubs or organisations which the child attends. This additional discretionary right for local authorities would satisfy concerns over social exclusion of a child.
Rights of the child
Lord Soley has declared his intention behind his bill in an article in ‘The House’, Parliament’s Magazine on 23rd April 2018. The core purpose of the bill is to protect the rights of the child. He states:
"I am not and never have been opposed to home education. I think it is an important right for parents who choose to do it. But there are problem areas that need to be addressed and we must never forget the rights of the child." 
He states that his concern is with "a small but crucially important group where the child is taken into home education for all the wrong reasons-most notably radicalisation, trafficking and abuse".
"We believe Lord Soley has achieved a correct balance when he states: ‘We have a duty to respect the right of parents to home educate but we also have a duty to ensure that children are not put at risk. So, some form of regulation is necessary.’ He also correctly identifies that society also has ‘a right and a duty to ensure a child is receiving the essentials of a good education - to be literate, numerate and able to write.’ 
What will the Bill mean for local authorities?
Clearly with the new powers the level of involvement of LEAs will increase. On a practical front it will mean commitment by local authorities of more resources at a time of severe financial restraint. Staff will be needed to set up a new form of register and record systems, unless present systems can be adapted. The cost of employment of qualified persons to carry out such visits and interviews who are able to meaningfully record their results by detailed attendance notes is a major factor in ensuring compliance with these proposed statutory duties.
Questions also immediately arise as to whether the home schooled premises will have to be equipped to a certain standard or work marked with detailed plans made by the home schooler in advance, in order to satisfy whether the education is deemed to be adequate. Certainly there needs to be more uniformity of approach between local authorities, who often apply different levels of what constitutes adequate education.
LEA officers will need to be supportive of the many different educational approaches, and presumably the evidential criteria for a suitable education will be on the basis of a balance of probabilities. 
Dr D Sykes is a Solicitor (retired) and Dr Samantha Davey is a Lecturer at Essex University.
 Quoted at para 36 of Campbell and Cosans v The United Kingdom 7511/76; 7743/76  ECHR (25/2/1982)
 See Woolf J (as he then was in Harrison & Harrison v Stevenson 
 A spokesman for the Welsh Government said: ‘We recognise that we are currently unable to provide reliable figures on how many children are educated at home and that is one of the reasons why we will be consulting on a database as well as statutory guidance for elective home education.’
 See ‘Homeschooling in the UK increases 40% over three years’, 26th April 2018 , https://www.bbc.co.uk/news/uk-england-42624220
 See Summary Analysis of the ADCS Elective Home Education Survey October 2017.
  EWFC B40
 See Amelia Hill, ‘State must raise its game to protect home-educated children, judge insists', The Guardian, 23rd April 2015
 Supra 1, Cite page reference
 S. 2(2) (a) The Children Act 1989
 S.2(1) and s.2(2)(b) the Children Act and s.4 1989
 S.33(3) of the Children Act 1989
 S.12 the Children Act 1989
 S. 44(4) of the Children Act 1989
 Lord Soley: ‘We must never forget the rights of the child in home education’, ‘THE HOUSE’ Parliament’s Magazine, posted on 23rd April 2018
 This was the standard that the court applies when a parent has been taken to court for failing to comply with a School Attendance Order.