Daniel Monk, a Reader in the School of Law looks at the background to a short debate about home education that took place last week in the House of Lords

The right of a child to an education is widely accepted as being a ‘good thing’. It is what some people describe as an ‘apple pie’ issue: something that is so obviously nice, and comforting, that no one could possibly object. But what the right to education means in practice is complicated and contested and inherently political. And nowhere are the underlying tensions as acute as in debates about home education.

This is because ‘education’ is often equated with ‘schooling’, and the latter exposes the child not only to other children but also to the ‘professional’ gaze of teachers, inspectors and social welfare agencies. Consequently, home education challenges popular assumptions about child development and ‘socialisation’ and at the same time raises questions about the state’s role in both enforcing the right to education and in defining the content of education. These latter questions go to the heart of debates about the nature of democracy and this is evident from comparative perspectives. In Germany home education is unlawful, whereas in the USA it is constitutionally protected and practiced on a large scale. This country adopts a characteristically mid-Atlantic position. It is well established in law that parents can comply with their legal duty to educate their children by means of home education. But while this is unquestioned by policy makers, what is disputed is the extent to which home education should be monitored.

Concerns about raising educational standards, the number of children ‘missing education’, increased inspection of independent schools, and an emphasis on ‘safeguarding’ agendas in inter-agency cooperation, have all highlighted the anomalous position of home-educated children. And at the same time the number of home educated children has and continues to increase and is sometimes referred to as a ‘quiet revolution’. There has been a 65% increase in children recorded as home educated over the last seven years, and estimates vary from 36,000 to far higher. However, no one knows precisely how many children are currently home-educated. This is because unless a child is being removed from a school, parents are not obliged to tell anyone.

The reasons for this increase are complex and varied. Home educators include those who object to conventional schooling, sometimes on the basis that it is too permissive and liberal and, conversely, sometimes for being too traditional and overly prescriptive. But they also include parents who have felt that have no other option as a result of failures to address bullying in schools or through the much-criticised practice of ‘unofficial’ or ‘illegal’ exclusions.

Even when a local authority knows about children in their area that are home-educated there is confusion about what their current monitoring duties and powers are, and this is compounded by the fact that the current guidance produced by the Department of Education in 2007 is both out of date, unclear and provides advice based on questionable interpretations of the existing law that restricts a more pro-active investigatory role.

Attempts to address the issue were made by the last Labour government. It commissioned a review of the law, The Badman Review, which recommended the introduction of a compulsory national registration scheme. This was included in – but subsequently dropped from – the Children, School and Families Bill 2009. At the same time a report by the House of Commons Select Committee for Children Schools and Families (2009) concluded that it was ‘unacceptable that local authorities do not know accurately how many children of school age in their area are in school, are being home educated or are otherwise not at school’. The Committee heard from Sue Berelowitz, The Deputy Children’s Commissioner, who argued that it was ‘not acceptable that the state should not be able to vouch for the education of so many of its citizens’. In its final report the Committee also quoted extensively from an article of mine. This confirmed what others have found: that in an age of political sound bites, Select Committees are institutions that can often be refreshingly receptive to academic research. More recently, in May 2016, the Wood review of local safeguarding children boards, commissioned by the Department for Education, concluded that in relation to home education, that a ‘local authority is not able to assess either the quality of education being received by the child or whether there are any safeguarding issues that require attention’ and that ‘this needs to be addressed urgently’.

Despite these widespread concerns, to date both the Coalition and the current Conservative governments have refused to act. One possible reason for this is the highly effective lobbying by home education activists. While apolitical, the lobby’s arguments against enhancing monitoring cohere with predominantly Conservative parliamentarians’ concerns about expanding the role of local authorities (in particular in the context of education), the necessary additional expenditure, and perceptions of the ‘nanny’ state. However, the contingency and indeed inherent contradictions underlying these concerns came to the fore in 2015 when the government initiated a consultation about the law regarding unregistered schools. This was motivated by wide-ranging safeguarding and welfare concerns raised by OFSTED, but also by distinct concerns about ‘radicalisation’ and the perceived existence in some places of ‘a narrow Islamic-focused curriculum’. While wishing to address these issues, the government at the same time made explicitly clear that it had no desire to address issues relating to home education. In responding to the consultation I argued that not only did this further exacerbate the anomalous position of home education, but that it also failed to acknowledge that home education could be exploited by anyone wishing to avoid the proposed enhanced monitoring of other out-of-school settings.

Tying to motivate the government to act over home education is hard. But concerns about unregistered schools have, albeit unintentionally, opened the door to calls to act more widely, and for those not uncritical about the ‘radicalisation’ agenda this linkage highlights the messy complexity of political strategizing. Another way of keeping the issue of home education on the agenda, indeed any issue a government would like to shelve, is by drawing an issue to the attention of sympathetic parliamentarians who are receptive to engaging with work by academics. I adopted this approach here, and last week the cross-bench peer Baroness Deech asked an oral question in the House of Lords about the government’s failure to respond to the recommendations of the Wood review. These questions provide approximately seven minutes for a mini-debate. Condensing detailed academic arguments into a briefing note to effectively assist peers in this debate was challenging and brought to mind the quip: ‘I’m sorry this is such a long letter, but I didn’t have time to write a shorter one’. In response to Baroness Deech’s questions and to those of the six other peers who spoke, Lord Nash, the Parliamentary Under-Secretary of State for Schools, offered no clear answers. But the questions and the short debate send a message of support to local authority professionals who struggle in difficult circumstances to do their best to support and protect home-educated children and reminds the government that their inaction is not unnoticed.

Further information:

• Watch the debate (at 22.45 until 15.29.14)
• Daniel Monk
• School of Law
• Courses in Law
• Articles by Daniel Monk on home education
  • ‘Out of School Education’ and Radicalisation: Home Education Revisited’ Education Law Journal 1: 17-31. A summary of this article was submitted in response to the governments’ 2015 consultation: Out of school education settings: call for evidence.
  • ‘Regulating Home Education: Negotiating Standards, Anomalies and Rights’ (2009) Child and Family Law Quarterly 21 (2): 155-184)
  • ‘Problematising Home Education: Challenging “Parental Rights” and “Socialisation”‘(2004) Legal Studies (2004) Vol 24(4): 568-598