Plans to regulate home education represent dangerous overreach — and an undermining of the authority of parents.

Are you a subject or are you a citizen? For Aristotle, a citizen was not a person who enjoyed certain rights, or voted in national elections, but rather someone who participated in governance. This understanding is vital to how we think of the role of individuals and families in our culture today. In a democracy adult members of society are supposed to be partners in political power, responsible not only for their own lives, but also for their communities, friends and family. But this is no longer how the British state sees the British people.

From the “nudge unit” which seeks to manipulate our behaviour, to the small-scale monitoring and surveillance imposed on law-abiding individuals during the pandemic, it has long been clear that we are passive rule-takers, not active partners, in the eyes of the authorities. This withdrawal of trust from the British citizen is nowhere more sharply felt than when it comes to the authority of parents over their own children. Since we are barely to be trusted with responsibility for our own lives, you can imagine just how little we are relied upon when it comes to caring for children.

The introduction of supervised toothbrushing and breakfast clubs reflects a political class that believes parents are not capable of ensuring their children have brushed their teeth and eaten breakfast before going to school. Yet frustrating these efforts are the growing numbers of parents opting out of the education system altogether. But rather than addressing the causes of this exodus, there is a legislative blitzkrieg, with a government bill and a private members bill both making their way through the Lords, both with homeschooling in their crosshairs. Proposals include a national register of families with the temerity to educate their children at home, and new harsher penalties for parents. Yet the Local Government Association has already urged that the proposed legislation should “go further, giving councils the power resources [sic] to speak to children directly and check that they are safe and being taught a suitable education.”

Currently the status of children who are being taught at home is a matter for local authorities, and government guidance is clear that once it is established that a child is receiving a good education, contact from the council should be “minimal” and not “onerous” for parents. But there is considerable ambiguity elsewhere in the guidance, with many local authorities misusing their powers to harass law-abiding, responsible families.

Local authorities have the power to serve S.437 notices, requiring further information about a child’s education when it is believed to be inadequate. Should this be the case, they can then serve school attendance orders (SAOs) requiring that children be placed in a school. This is a process that, in extremis, can end up with parents being prosecuted and children taken into care. But measures intended to address seriously defective parenting and education are instead used by many authorities in a casual and routine way. S.437 notices are served, contrary to government guidelines, before informal inquiries are made, with a punitive measure used as a way of gathering data. Many parents report that once this unpleasant process is started, it stays punitive, with even well-cared for and educated children subject to SAOs.

This opaque and arbitrary process reflects the prejudices of many people in local and national government, who share this prevailing assumption that parents cannot and should not be trusted, and that childhood is a matter to be regulated and controlled by the state. Although local authorities have the scope to make reasonable, common sense decisions, and to provide support to home educators, there is no uniform standard or expectation that they do so.

Tom and Laura

I spoke to two families that had the worst possible experience with the local authorities, whose names I have anonymised to protect their privacy. Tom and Laura were the model home school parents. They’d engaged positively with the local authorities in Kent, and after a single informal visit, had no issues with the council. Laura, a primary school teacher, wanted to give her children a more independent and varied curriculum, and described a dazzling array of clubs, sports, activities, and regular family field trips. Her children have had educational success, with her eldest sitting and passing both GCSEs and A-levels, and her middle child winning a music scholarship.

But after moving to Bromley, the family’s peaceful life was thrown into chaos by the local authority. A lady from the council asked to come over, and having had a good experience with Kent, they saw no reason to refuse. She was friendly and positive about the education Tom and Laura’s children were getting — but she explained she “can’t make decisions” about the suitability of that education. Shortly thereafter, a campaign of intimidation began. The council sent a stream of SAOs (school attendance orders), but would not answer questions about whether the education the couple provided was suitable. When they protested that the children were being properly educated, and challenged the orders, the local authority took them to court.

Since their ordeal began, Tom and Laura have received hundreds of emails and letters from the council that they describe as extremely threatening, and have racked up £8,000 in legal costs. Parents who have been wrongly served SAOs have few avenues for relief. They can either engage in lengthy and expensive litigation, or they can appeal to the Secretary of Education. Tom and Laura did both, and they succeeded in getting the SAO quashed by the Department of Education thanks to the intervention of their local MP. But, strangely, despite lifting the SAO, the email from the Department said that they had “found no fault with the process”. Astonishingly, despite the order having been overturned, the local authority took this line as an indication that they should continue their efforts to force Tom and Laura’s children into a local school. Further SAOs were issued for the children.

Unable to get a straight answer as to why this was happening, the couple made multiple freedom of information requests, attempting to find out why the SAOs had been issued, and further requesting that the council hand over their personal data. And they discovered something highly alarming. According to the couple, the visit by the nice lady from the council had not been an “informal enquiry” as set out in the guidance on Home Education — it was a welfare check. The council was obligated to inform Tom and Laura that the woman visiting was an Educational Welfare Officer, but had failed to do so. Despite admitting this, the council has refused to explain or hand over data on how the couple came to their attention in the first place or what prompted the welfare check. Despite the intervention of the ICO (the Information Commissioner’s Office) the council has yet to answer these questions, or hand over the relevant data.

The couple were stoic, and said the children, though initially angry, had coped well. The biggest casualty for them was their trust in the government. I asked them what they made of the proposed legislation on home education. Laura says that before all this had happened, she would have supported the idea of a register — now she doesn’t want the local authority stepping foot in her home ever again. She believes that the local authority became aware of them following the birth of their third child — and that the local GP had shared their data with the council in breach of GDPR.

Helen and Peter

This pattern of systematic breaches of privacy law, combined with an inquisitorial, punitive interpretation of home education guidelines, often against the letter and spirit of the law, was especially evident with the second family I spoke to. Helen and Peter have two children, and live within the Bradford local authority. They retired early to dedicate their time to their children, who they wanted to provide with a free, adventurous and independent education in the countryside. Like Tom and Laura, their children have succeeded in and are currently studying for qualifications towards their chosen careers, and are active members of their community. And like Laura, Helen is a former teacher.

Helen and Peter were contacted by the council following a GDPR breach from their GP. Upon learning this, they made lawful erasure requests and revoked consent for the council to use their data. For three years, whilst subject to threatening messages from the local authority, they complied with requests for information, providing year reports and robust evidence of their children’s education, which the council admitted was suitable.

After repeated requests that the wrongly shared data be removed were ignored by the council, they eventually refused to provide any further information, having, they believed, satisfied their responsibility to show they were providing a suitable education, and not trusting the council to protect their data and privacy.

At this point, the harassment really began. Warning letters, then SAOs followed. Ironically, given how this story began, the couple’s privacy and data protection were surrendered during this process, with the family’s personal information shared with schools even before warning were issued. Following the revelation of the breach, the SAOs were revoked by the council.

But the council then simply restarted the process, and Helen and Peter are now yet again being bombarded with threatening letters. In a further flaw in the system, SAOs may be challenged in the courts or through the Department of Education, but there is no method to appeal or challenge letters of intent. This means that so far none of the couple’s appeals to the Department have been properly answered, and attempts to get the ICO to step in have resulted in no effective action.

Helen and Peter are stuck in procedural limbo, bombarded with threats by a local authority that refuses to delete their data, and appears to be freely sharing it. Understandably, they don’t want to further engage with a system that isn’t following its own rules, and is regularly violating their privacy. Worse, they feel like there’s no avenue for escape or appeal. According to the couple:

Despite government saying families can obtain recourse through the LGO [Local Government Ombudsman], s442 revocation requests to the Secretary of State and intervention by the Department of Education themselves, in reality none of these avenues exist. In fact, the DfE even encourage this unlawful behaviour, so when a Council goes rogue, there’s nothing you can do other than keep fighting or allow them to take your rights away.

The law as a cudgel 

If all of this seems confusing, muddled and ambiguous, that is because it is. In the absence of clear processes, some local authorities have used SAOs, and the threat of SAOs, as a tool to force home parenting couples to provide more information than the law requires. There is also a profound mismatch between the wide latitude currently available to parents legally, and the agenda of the Department of Education itself. With two bills currently in the Lords, both directed at establishing a register of children not in school, and pushing for harsher penalties for non-compliant parents, there is a sense amongst many that Whitehall and local authorities see the current law as a temporary impediment.

One of the proposed bills would see criminal penalties including up to a year’s imprisonment imposed on non-compliant parents. The absurdity of protecting a child’s education by way of imprisoning their parents is blatant. It’s not especially clear, in the absence of a criminal harm, how you would even assess which parent would get the prison sentence. Does mummy go to prison for homeschooling, or is it daddy? And if it’s both, what happens to the children?

The current panic about homeschooling is, of course, driven by the rise in illegal schools

It is worth noting that there are criminal penalties and social interventions already available when it comes to negligent or abusive parents, which are well-established and already available. This is a new custodial penalty levied on parents who are, by definition, otherwise innocent of any of the failings or abuses which would merit the intervention of a social worker or a policeman.

The current panic about homeschooling is, of course, driven by the rise in illegal schools and tragic cases like that of the murder of Sara Sharif, where the invisibility of some children to the authorities means that nightmare cases of abuse are missed. But there is more than a touch of opportunism about the rush to move from cases of abusive homes, to a crackdown on parents who opt out of an often very flawed education system.

Talking to home educators, I got the sense of families that saw home education as a positive choice, and whose children were extremely visible and active in their community.There is a whiff of political correctness in this debate too — the tragedy of Sara Sharif involved deep-seated issues in the Pakistani community, not individual families choosing to forgo a state education. Yet home educators who are extremely well integrated into society become the collateral damage in an attempt to clamp down on ethno-religious separatism without ever naming it.

The parents I spoke to … had been let down, bullied and lied to by the authorities

Of course it is not just about separatism; as recent reporting has exposed, there is a rise in conspiracy theories, occultism and anti-vaccine ideology that cuts across many demographics, and there are illegal schools that push these views. You can understand why the government wants to regulate this area more. But this brings us back to the question we started with — are parents partners and citizens in this process, or are they subjects?

Rebuilding trust

The parents I spoke to who had been let down, bullied and lied to by the authorities were unambiguous. Laura described it as a “master-slave” relationship. In her case, she and her family actually knew, or came to know, people in local government and local education involved in these decisions. In an especially bizarre moment, Laura and Tom’s daughter, a talented musician, played the last post for Remembrance day, in the presence of members of local government, whilst being the subject of an SAO. To this day, nobody has been able to give either couple a straight answer as to why they were hounded and harassed, despite providing their children a suitable education, and showing evidence of this to the local authorities.

Our systems of government have become inhuman and robotic, and laws that assume reasonable behaviour and common sense, premised on sensitively conducted “informal enquiries” by rational, humane officials, no longer function. The breakdown of unwritten laws and a shared common sense approach to our collective life has left a growing feeling of distrust and disengagement in its wake. Attempts to rectify this by punitively pushing parents into putting their children into the school system are unlikely to succeed, and are very likely to worsen those feelings of mistrust and alienation.

Addressing this widespread national crisis of trust is a generational project. But on the issue of home education, there is a clear pathway to a better system, if only the government will listen to home educators, rather than trying to crack the whip.

The current guidelines and processes are unquestionably inadequate. There are too few steps between informal enquiries, which are under defined, and a punitive process of demanding information and requiring school attendance. A clear process should be set out, and an ability to appeal decisions, both locally and nationally, outlined. Most of all, the contradictions in the guidelines must be addressed and dealt with. At present they outline that parents have no legal obligation to provide information or allow visits, yet also say that such refusals may be reason for punitive action. Because there is no definition of informal enquiries, councils are free to define any level of monitoring under that heading.

This mismatch between law and guidelines is not only inherently confusing, but effectively punishes parents for seeking to assert their rights under the law. Just as concerning are the provisions in the guidelines for “information sharing” between different services, such as GPs with the local authority, but they set out that GDPR should not be breached without clearly outlining how this is to be avoided. This is an extraordinary moral hazard, and it is striking that both families believe their data was improperly shared by a GP at the behest of the local authority. The wording is profoundly ambiguous, suggesting in one line that such information sharing should be routine, before suggesting further on that it pertains only to cases where there is “neglect” or “significant harm”. The guidelines also swing wildly between advocating restraint, and urging prosecution even where councils might be reluctant.

There is a clear institutional view in the Department of Education that children belong in school, and that education should be left up to experts. This is coupled with a Labour party that sees schools as a crucial tool to intervene in society, dealing with issues of ill health, inequality and integration at an early age, when it is imagined that state interventions will be at their most effective and long-lasting. If parents opt out, this avenue is closed off.

But it could take a very different approach. If parents were consulted, included and supported in educational policy, trust could be rebuilt. Offering more support and resources to home educators would allow the government to keep track of children’s education, not for the purposes of punishing non-conforming families, but in order to help them out. At the moment the system is all stick and no carrot. There are currently no incentives for families who are already unhappy with the education in their area, or have their own positive vision of pedagogy, to engage with local authorities. Landing on the radar of local government, as the families I spoke to discovered, can mean years of harassment, and the only resources offered are school places they don’t want to take up. But if the government instead gave formal support to home educators, many families that could benefit from taking up school places might be coaxed back into the system over time. Meanwhile those who are happy and successful in their educational arrangements would be supported in their choices, and would be more likely to engage positively with the system.

If a national register of children not in school is still the aim, the government must first seriously address the misuse of private data by local authorities, and set out strict rules for how and when it can be shared. In the meantime, an “opt-in” system for home educators could be widely advertised, and offered at the point of contact with public services. Communication to parents should be compassionate and pastoral, not threatening and hostile, assuming good faith in the absence of evidence to the contrary.

What is required, in short, is a leap of faith. Trust in this context is frightening, not only for parents who feel persecuted by the state, but also for those in authority who live in terror of failing to prevent tragedies like the case of Sharif. But mutual trust between parents and local government is the basic and essential foundation of education policy — without it, nothing will be achieved, and children will suffer.

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This article (Nationalising childhood) was created and published by The Critic and is republished here under “Fair Use” with attribution to the author Sebastian Milbank