Legislative framework

Excerpt from the Home Truths report, includes legislation, case law, legal opinions and commentary.

This section sets out the legislative and policy framework that relates to home education in Scotland, along with commentary informed by recent opinions from counsel on the human rights impact of proposed changes across different UK jurisdictions. It has been reviewed by a Scots education lawyer but is intended only as an overview to assist home educators’ and others’ understanding of home education and the law.

The Education (Scotland) Act 1980 affirms the principle that children should be educated in accordance with the wishes of their parents “so far as is compatible with the provision of suitable instruction and training and the avoidance of unreasonable public expenditure.”The ECHR further mandates respect for parents’ religious or philosophical convictions in relation to compulsory education.

Section 30 of the 1980 Act provides that: “It shall be the duty of the parent of every child of school age to provide efficient education for him suitable to his age, ability and aptitude either by causing him to attend a public school regularly or by other means.”

The phrase “or by other means” signifies the equal status of the options available to parents in the discharge of their legal duty to educate. However, as former home educator and barrister, Ian Dowty, observed in relation to the “or otherwise” clause in the broadly equivalent education legislation for England and Wales:

…there is without doubt a bias towards school education; a bias which perhaps results from an assumption never challenged in the minds of those responsible for drafting the legislation, and which regrettably pervades officialdom.” [Dowty, T and Cowlishaw, K (2001) Home Educating Our Autistic Spectrum Children: Paths are Made by Walking]

Section 35(1) covers what has become known as the ‘consent anomaly’, stating that: “Where a child of school age who has attended a public school on one or more occasions fails without reasonable excuse to attend regularly at the said school, then, unless the education authority have consented to the withdrawal of the child from the school (which consent shall not be unreasonably withheld), his parent shall be guilty of an offence against this section.”

Some parents have successfully argued that the provision of home education constitutes a ‘reasonable excuse’ for non-attendance in anticipation of a child’s removal from the school roll, or where the authority has unreasonably delayed or withheld consent.

Section 37(1) sets out the powers of an education authority where it is not satisfied with the parental provision, namely to “serve a notice on the parent requiring him […] either (a) to appear (with or without the child) before the authority and give such information as the authority may require regarding the means, if any, he has adopted for providing education, or (b) in the option of the parent, to give such information to the authority in writing”.

Section 37(2) states that if the parent “fails to satisfy the authority that he is providing efficient education for the child suitable to his age, ability and aptitude or that there is reasonable excuse for his failure to do so, the authority shall make an attendance order in respect of the child”.

Statutory guidance on home education, issued under Section 14 of the Standards in Scotland’s Schools (Scotland) Act 2000, aims to assist local authorities in interpreting the primary legislation and to protect parents from over-reach. Now scheduled for its third review, the current version includes ‘suggested characteristics’ of suitable education and a recommended maximum timescale of six weeks for processing consent to remove a child from the school roll. Local authorities are required to have regard to statutory guidance, but it is not law and may be challengeable if not in line with other legal requirements.

Although not binding on Scottish courts, English case law has assisted in defining ‘suitable and efficient education’. In the (unreported) appeal case of Harrison and Harrison v Stevenson in 1981, it was held that a suitable education should both “prepare children for life for modern civilised society” and “enable them to achieve their full potential”, while an efficient education was said to be one that “achieves what it sets out to achieve”.

In R v Secretary of State for Education, ex parte Talmud Torah Machzikei Hadass School Trust (1985), education was judged suitable if it “primarily equips a child for life within the community of which he is a member, rather than the way of life in the wider country as a whole, as long as it does not foreclose the child’s options in later years to adopt some other form of life if he wishes to do so”.

While the above benchmark rulings assist with the interpretation of ‘suitable and efficient education’, Article 29 of the UNCRC focuses in similar terms on the aims of education, which, it states, should be directed to:

▪ The development of the child’s personality, talents and mental and physical abilities to their fullest potential.
▪ The development of respect for human rights and fundamental freedoms and the principles enshrined in the Charter of the United Nations.
▪ The development of respect for the child’s parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate and for civilisations different from his or her own.
▪ The preparation of the child for responsible life in a free society in the spirit of understanding, peace, tolerance, equality of sexes and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin.
▪ The development of respect for the natural environment.

In R v Surrey Quarter Sessions Appeals Committee, ex parte Tweedie, QBD 61LGR 464 [1963], it was held that the Education Act “does not provide for or contemplate an intrusion of a parent’s privacy by inspectors coming into the home, and that it is quite wrong for a Local Authority to insist on such inspection”. Phillips v Brown, Divisional Court (unreported, 1980) subsequently held that “an education authority should not, as a matter of policy, insist on inspection in the home as the only method of satisfying themselves that the children were receiving full time education”.

The 2016 UK Supreme Court ‘named person’ judgment prohibited actions by public bodies that could arbitrarily interfere with Article 8 of the ECHR, holding that nothing in Article 3 of the UNCRC could extend the state’s powers to interfere with the negative rights in Article 8.The court also re-affirmed the intervention threshold, already upheld by the 2013 Haringey ruling, which had found “serious departures from permissible practice [that] were unlawful” in relation to the council’s data processing without consent.

In the context of home education withdrawal requests, councils have no powers to trawl or share the personal records of parents seeking to exercise an equally valid educational choice unless there is existing evidence of a child protection (not ‘wellbeing’) concern. Nor can agreement to a child’s removal from the school roll be made conditional upon parents consenting to the processing of their personal and (especially) sensitive or special category data as defined by data protection law.

Another important judgment by the Court of Justice of the European Union (CJEU), Smaranda Bara and Others v Casa Naţională de Asigurări de Sănătate and Others (2015) precludes the transfer and processing of personal data between public administrative bodies without prior notification in order to ensure foreseeability and accessibility for data subjects. 

In September 2019, the Irish Data Protection Supervisor announced her intention to take enforcement action after finding the data of 3.2m citizens had been processed unlawfully as part of the government’s controversial Public Service Card scheme, which, like the named person service, had been described as “mandatory but not compulsory”. CJEU rulings are expected to apply to the UK post-Brexit.

Home education (or ‘home schooling’ as it is often known outside the UK) is either illegal or heavily regulated in several European countries, but States parties are permitted a wide margin of appreciation in framing domestic education legislation. Education law across the UK specifically includes the ‘otherwise’ or ‘by other means’ options, but other jurisdictions do not. Germany, for example, outlawed home education in the 1930s and ‘Hitler’s law’ has never been repealed, despite several challenges, the most recent of which sought (and was denied) an appeal to the Grand Chamber of the European Court of Human Rights
Meanwhile, the UK Supreme Court’s reference, in its ‘named person’ judgment, to the need to guarantee respect for individual differences has been welcomed by home educators and other minority groups in the UK, in particular the reminder that:

The first thing that a totalitarian regime tries to do is to get at the children, to distance them from the subversive, varied influences of their families, and indoctrinate them in their rulers’ view of the world.

There are subtle but important differences in the legislation pertaining to home education in the constituent nations of the UK, with ‘deregistration’ from mainstream state schools available upon written notification in England and Wales but not in Scotland, where council ‘consent for withdrawal’ applies in most cases. Whereas parents south of the border are required to cause children to receive suitable education, Scots law requires parents to provide such education; thus, it is the provision that should inform councils’ ‘satisfaction’ or otherwise.

Scottish guidance affirms that there is no legal duty to monitor home education but suggests that local authorities may reasonably request annual updates of provision. They may not insist on access to the home and/or to assess the child, which is a parental responsibility, and refusal to consent to such demands cannot be assumed, in itself, to be a cause for concern regarding the suitability of the home education provision.

The wider legal principles are clear, namely that parents have responsibility for determining their children’s best interests unless the relevant threshold test has been met. This is often misunderstood or misrepresented, and has been further muddied by the GIRFEC regime. In the wake of the ‘named person’ case, the Scottish courts  were again found by the UK Supreme Court to have erred in the case of EV [2017] by applying a test of ‘best interests’ before establishing whether the test of ‘significant detriment’ had first been met.

Legal opinions

In Wales, proposed new home education guidance is currently being challenged as “unlawful encroachment on human rights”, with counsel’s opinion referencing Convention and data protection rights, which cannot be overridden by primary or secondary legislation, and citing the Scottish ‘named person’ judgment. Separate QCs’ opinions procured in the Isle of Man and England (not published in full) have been similarly framed and accord with legal advice obtained in Scotland on the limits of state interference with home educators’ rights.

Additional Support Needs

As our research has consistently found, children with additional support needs (ASNs) are increasingly likely to be home educated due to these needs being unmet, or likely to be unmet, in schools. However, those with complex needs and disabilities are expressly excluded from access to co-ordinated support plans (CSPs) under the Additional Support for Learning Act 2004, and authorities may refuse parental requests for assessment of home educated children’s ASNs. Moreover, the presumption of mainstreaming and ‘presenteeism’ has become embedded in public policy to such an extent that home educated young people are ignored throughout so-called ‘inclusive’ guidance that is said to apply to all children as opposed to all pupils.

The exclusionary attitude towards grassroots home education groups, home educating parents and their children was further demonstrated during a discussion of ASNs at a meeting of the Education and Skills Committee in February 2019, when the children’s commissioner’s representative, with whom we had already shared our findings on parental reasons for withdrawing children, suggested duplication of our work by a third party with only a tangential connection to home education.

Furthermore, the commenter’s insinuation that home education had lesser status, because more parents are withdrawing children from schools that fail to meet their ASNs, betrayed the same pro-school prejudice that has fuelled an increasingly hostile, home-eduphobic environment. Home educators routinely receive less favourable treatment, and there is a lack of recognition that schooling can also be a “negative choice”, not only for children with severe anxiety, chronic conditions and disabilities, but also for parents whose circumstances preclude their preferred option to home educate, or who are unaware that school is not compulsory.

Parliamentary petition

Having been excluded from giving oral evidence to parliament on the adverse impact of proposed remedial legislation in the wake of the ‘named person’ ruling, the Scottish Home Education Forum and Tymes Trust held parallel ‘fringe’ events, at their own expense, for ‘voiceless’ families, before presenting their evidence directly to MSPs.

A joint petition was subsequently submitted to the Scottish Parliament calling for a public inquiry into the human rights impact of GIRFEC, since the universal, non-consensual data sharing at its core, which was struck down in 2016, remains embedded in public policy and practice, causing ongoing harm to families and a breakdown in their trust in services. The petition has been referred for consideration by the Education and Skills Committee, whose Members have been furnished with a number of case studies drawn from the petitioners’ respective networks and will receive a copy of this report.

An inconvenient minority

Katarina Tomasevski, former UN Special Rapporteur on the right to education, had this to say in 1999:

The objective of getting all school-aged children to school and keeping them there till they attain the minimum defined in compulsory education is routinely used in the sector of education, but this objective does not necessarily conform to human rights requirements. In a country where all school-aged children are in school, free of charge, for the full duration of compulsory education, the right to education may be denied or violated. The core human rights standards for education include respect of freedom. The respect of parents’ freedom to educate their children according to their vision of what education should be has been part of international human rights standards since their very emergence. 

More than 20 years on, home educating families are encountering discrimination on a daily basis due to ongoing misunderstanding, misrepresentation and misapplication of the law. Indeed, the policy ‘capture’ has been so universally effective that the forum has had to highlight inaccuracies in a recent SPICe briefing, which (misquoting the1980 Act) stated that “statutory responsibility for the provision of education rests with individual local authorities”. The error, which was acknowledged by the committee convener, has nevertheless remained uncorrected, and the same briefing cited unreliable “BBC figures” rather than referencing our 2018 published research on the number and changing demography of home educated children in Scotland.