In a legal opinion [pdf download] published today, top Manx lawyers have cited the Scottish ‘named person’ judgment handed down by the Supreme Court in 2016 as an authoritative legal precedent that serves to uphold the rights and freedoms of families who choose home education over state schooling.
Following a crowdfunding campaign by concerned parents, Douglas-based Quinn Legal has assessed proposed new legislation by the Isle of Man government as being non-compliant with several articles of the European Convention on Human Rights (ECHR). It also points to likely breaches of the Equality Act when it comes fully into force on the island.
Fewer than 60 children are educated at home on the Isle of Man and no pressing problem has been identified; nor has any deficit been shown to exist within the existing legislative framework to indicate the need for such a draconian overhaul of current arrangements, according to the legal opinion.
As the law stands across the UK, it is parents, not the state, who have the duty to ensure their children are suitably educated during the compulsory years. In common with other administrations, the Isle of Man’s department of education, sport and culture (DESC) already has powers to intervene if parents are not providing a suitable education. The proposed measures are therefore viewed as a policy-based, prejudice-driven attempt by the Manx government to exert disproportionate control over families’ lives and legitimate parenting decisions by severely restricting their educational options and opportunities.
Quinn Legal lawyers consider the Isle of Man approach to have failed to recognise ‘the significant level of legal protection’ afforded under the ECHR to those who practise home education’. In particular they note that ‘home educators would be discriminated against in the enjoyment of their Article 8(1) and Article 9(1) rights’, which protect private family life and freedom of conscience respectively, and that ‘such discrimination violates Article 14’. Moreover, they point out that Article 6 (right to a fair trial) is engaged, along with Article 2 of the First Protocol (right to education), concluding that the legislative proposals ‘fail the proportionality test’.
In its landmark ‘named person’ judgment, the Supreme Court disparaged equivalent Scottish legislation as akin to totalitarianism, labouring the point that legitimate aims must only be pursued by rights-respecting means, although the nuance has unfortunately been poorly understood and is often misrepresented for political expediency.
If the Manx legislation is passed, parents who refuse to submit to ‘prescriptive towards coercive’ demands by the DESC would be liable to fines and imprisonment. This would represent a serious breach of overarching human rights, data protection and, potentially, equality law, and families are rightly calling for an urgent government re-think in order to avoid unintended consequences and, potentially, legal action.
A FOI request has already revealed that a Member of the House of Keys (MHK), the Isle of Man’s parliament, sought advice from Edinburgh City Council in 2017 on how to introduce a robust monitoring scheme for home educating families in the (mistaken) belief that the Scottish council lawfully had this in place. He wondered how rigidly the policy was enforced and what enforcement measures were available if families failed to comply with council demands for visits, reports and unsupervised access to children, since home educators on the island had expressed concerns over undue intrusion. Edinburgh council claimed it had not responded, but should perhaps have explained that its own policy did not wholly reflect national statutory guidance, and that all such policies require to be ‘read down’ to comply with overarching human rights and data protection laws.
Despite being a valid option with equal legal status to schooling, home education has come under sustained attack for many years as children and their families have become subject to increasing surveillance and datafication by the state via education, health and other ‘services’. The prevailing command-and-control, outcome-based, data-driven model of ‘service delivery’ is essentially inimical to self-defined human rights, thus lawful choices exercised by minority groups are routinely depicted as ‘radical’ and somehow ‘risky’. In the latest language of Newspeak, voluntary participation in optional services (such as health visiting, nurseries, and schools) has become re-defined as compulsory engagement (or else!), which was another concern highlighted by the Supreme Court in its 2016 ruling.
The rights-disrespecting narrative has recently become even more offensive as home educator numbers have been rising exponentially across the UK. This increase has been driven predominantly by parents whose children have disabilities, chronic conditions and additional support needs that have been left unmet in schools, with sometimes catastrophic consequences, as teachers are expected to meet increasing demands with decreasing resources.
The practice of ‘off-rolling’, whereby parents are encouraged or coerced to withdraw ‘challenging’ children to protect schools’ performance statistics, has swelled the numbers further by skewing the figures to include ‘involuntary’ home education. As a result, many home educating families have found their lawful choices being attacked on a regular basis as a deflection from government failures to resolve underlying problems with the inflexible, target-driven schooling system.
Anne Longfield, the children’s commissioner for England, launched a vituperative attack on ‘otherwise’ educators last month in a blatantly biased report that claimed home educated children were ‘invisible’, at greater risk of neglect or harm and unlikely to achieve positive outcomes, none of which is borne out by research evidence, which in fact tells a completely different story.
Longfield also fronted a controversial Channel 4 Dispatches programme in which she sought to smear home education rather than address legitimate concerns over off-rolling and illegal schools, prompting calls for her resignation for ‘hate speech’ and failure to uphold the rights of all children, including those educated outside school.
Belying her role as an ‘independent’ commissioner, her latest assault on home education coincided with a Westminster bill seeking to impose similar draconian measures as those proposed for the Isle of Man. That bill has since been dropped, although its introduction by Lord Soley, whose partisan prejudices are well documented, fuelled a toxic debate that has led to home educated children and families being subjected to unwarranted intervention by ‘services’, as well as being targeted for abuse in the community.
Research by the Scottish Home Education Forum last year confirmed the same upward trend in home education numbers as in other parts of the UK, with parental decisions being driven mainly by safety concerns, including bullying, dangerous restraint and seclusion practices (recently condemned by the Scottish children’s commissioner after a formal investigation), unmet additional support needs and children’s deteriorating mental health. Although many parents still proactively choose home education from the outset, also cited as key drivers were the intrusive data collection on which the outcomes-based, deeply unpopular CfE and GIRFEC policy rely.
In an effort to prevent the escalation of problems and misunderstandings, and to avoid the toxicity of ‘debate’ that has dominated in other parts of the UK, the forum has initiated dialogue with the Scottish Government and several councils to highlight examples of discriminatory practice and the lack of specialist training for service providers who may come into contact with home educating families. They have also questioned the legality of aspects of national home education guidance and local policies in the wake of the Supreme Court ruling and GDPR, and have offered to assist in making the necessary improvements.
Being so few in number, home educators on the Isle of Man are especially vulnerable to totalitarian tactics by a parochial administration, whose own schooling, social care, children’s rights and data protection systems have all come in for considerable criticism in recent years. They can, however, expect support and solidarity from their counterparts in the UK and further afield as they fight to protect freedom in education for all.
