The Scottish Home Education Forum’s co-ordinator was invited to speak at the Global Home Education Exchange Virtual Summit 2020 on the topic of ‘best interests of the child’, with specific reference to home educators’ participation in the successful legal challenge to the Scottish Government’s ‘named person’ scheme and wider GIRFEC agenda.
Due to the pandemic, the conference took place over Zoom – not quite the Philippines as originally intended, but the virtual event allowed for significantly more people to be involved and the topics were many and varied, with participation from 57 countries.
Sharing a platform with senior judges and lawyers from the US and Canada was daunting for our own ‘law school drop-out’, but hopefully, decades of campaigning on human rights issues offered an alternative grass-roots perspective.
At what point is it appropriate for the government to intervene in a family’s decision to home educate? What does the UNCRC say, if anything, about home education? Is there a conflict between parental rights and the best interest of the child? Experts will explore this question.
[A transcript of Alison’s presentation is posted below the video of the panel session, where she appears from 1 hour 10 mins. Apologies for the poor lighting in her living room!]
The battle of best interests
Thank you for inviting me, it’s a pleasure to be here.
I want to speak today about the ‘battle of best interests’, in particular how the Scottish Government tried to replace parents’ and children’s human rights with its own diktat of what’s best for everyone’s ‘wellbeing’; and how it was defeated in the UK Supreme Court – with a bit of help from home educators who had already spotted the state steamroller coming for them first.
The Scottish Home Education Forum is a national support and advocacy network and we work closely with the charity Home Education Scotland. We have links with groups in the rest of the UK, where education laws differ but all afford parents an equal choice between schooling and home education.
In addition, the ECHR and GDPR provide overarching protection for citizens, and the Scottish Parliament has no powers to enact legislation that is incompatible with either.
The UNCRC is the most ratified convention of all time and soon to be incorporated into Scots law. I probably hold a rather less dim view of it than other speakers. Both the European Convention and the CRC prohibit arbitrary state interference in family life, at least in theory.
Both also recognise parents as the arbiters of their children’s best interests, unless there is a risk of significant harm to justify intervention, which must still be proportionate and minimally intrusive.
Home education has equal status to public schooling in our national legislation, but deep-rooted prejudices against our choice are often exploited by pro-schoolers. In our recent research report, Home Truths, we coined the phrase ‘home-eduphobia’ to describe the hostile environment faced by home educating families that is ingrained in public services and mainstream media.
To counteract claims that home education is harmful or limits children’s life choices, we continue to build a research base that demonstrates its benefits, while pointing to weaknesses in the schooling system, especially for children with disabilities or special needs, and the shameful record of the state as parent of last resort for vulnerable children in their care.
We are not a quiet minority! We have a strong proactive network that engages fully on policy issues that are relevant to our community.
Home educators were in fact the first to sound alarm bells over the Scottish policy known as Getting It Right For Every Child (GIRFEC), which was supposed to ‘make Scotland the best place to grow up’ by supporting the rights and ‘wellbeing’ of every child.
It was in fact a Trojan horse that concealed a nefarious intent to collect information about every child and family member without consent, and to share it routinely between services, including the most sensitive data.
Not only teachers, health visitors and social workers, but taxi drivers and even hairdressers were to be conscripted as informants in order to identify children at risk of not meeting the state’s (not necessarily their own) ‘wellbeing’ outcomes.
‘Failing’ families would then be subject to compulsory ‘early intervention’ to keep them on the government’s approved path of ‘getting it righteousness’, all the while creating a steady revenue stream for state outcome enforcers and ‘social impact’ investors who essentially derive profit from poverty.
Intervening for child protection purposes has never been contentious, but ‘wellbeing’ is a nebulous notion, open to subjective interpretation, and a dangerous departure from the established threshold.
More than 200 ‘wellbeing indicators’ laid down by the government in its risk framework for box-tickers were so broad as to include every child in the ‘at risk’ category, and, by extension, label every parent a risk to their child’s wellbeing. Risks included being an only child, under five or losing the pet hamster…
Despite the rights-respecting rhetoric, it was clear that GIRFEC, as a state outcomes-driven policy, was incompatible with self-determined Convention rights.
In return for state funding, however, children’s charities all applauded the new ‘progressive’ policy that relied on infringing the very rights they had been clamouring for.
So the Scottish Government pressed ahead with its Children and Young People legislation to impose its own vision for children and assign each of them a ‘named person’ or state guardian to oversee their wellbeing, from pre-birth to 18 with no opt-out.
The data grabbing scheme was rolled out long before the law was due to come into force (which, of course, it never did) and, as predicted, led to targeting of minority groups, including home educators whose aspirations for their children’s wellbeing and best interests did not necessarily match those of the state.
The NO2NP (No To Named Person) campaign was formed in 2014 to challenge this legislation and fought a bitter and costly battle all the way to the UK Supreme Court, which ultimately reaffirmed the threshold for interference with Convention rights as ‘risk of significant harm’.
As an aside, Mike introduced me earlier as the campaign’s founder, but I cannot take that credit. As just one of the founding members, I was part of a dedicated team and it was very much a joint effort to hold the line.
The 2016 ‘named person’ judgment dealt a fatal blow to our government’s belief that it could enforce its own idea of ‘wellbeing’ on the nation’s children and families. Echoing the US Supreme Court Pierce v. Society of Sisters case that previous speakers have already mentioned, children were held not to be mere creatures of the state, whose role was, rather, to create optimum conditions for families to flourish by enabling them to decide their own best interests and manage their own lives.
When it came to actions by public bodies, the highest UK court crucially held that Article 3 of the CRC (prioritising children’s best interests) did not and could not extend the powers of the state to interfere with the right to private family life in Article 8 of the ECHR.
In a 2018 keynote speech on human rights and family life, Lady Hale, the now retired president of the UK Supreme Court, raised the ‘spectre of the totalitarian state’ in Scotland, emphasising the need to guarantee respect for individual differences and quoting verbatim from her own court’s ‘named person’ judgment:
‘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. Within limits, families must be left to bring up their children in their own way.’
Nevertheless, the Scottish Government remained determined to defy public opinion and the rule of law after the court defeat not only cast doubt on the competence of the Scottish Parliament to scrutinise legislation, but also led to questions about the independence of the Information Commissioner and the role of state-funded children’s charities who had so resolutely defended the rights-erasing legislation and underpinning GIRFEC policy.
In a bid to remedy the defects in the Children and Young People Act, the government introduced a new Information Sharing bill, but they found themselves hamstrung by the carefully crafted Supreme Court judgment, and the bill finally fell last year.
Engagement with GIRFEC policy, including the state guardian ‘service’, has had to be reset to a voluntary model unless there is evidence of risk of significant harm. However, we are still awaiting legally compliant ‘guidance’, while professionals are left confused, having already been trained to break the law.
In the meantime, we are petitioning parliament for a public inquiry into the human rights impact of the illegal snooping scheme that has itself caused significant harm to so many families. We want to know how it came to be embedded in public policy more than three years before the powers were due to come into force (and remember, they never did and are to be repealed).
We are determined to expose the abuse of power, lack of accountability and lack of justice for victims.
We have evidence from public records that the downward shifting of the intervention threshold from child protection to ‘wellbeing’ was decided by the government and agreed by the Information Commissioner in a cosy collaborators’ meeting, with no legal advice or parliamentary scrutiny, before the bill was even introduced to parliament.
A joint statement has been agreed with the Information Commissioner’s Office which should help clarify situations where a child was on a pathway to risk to wellbeing as well as significant risk of harm. The statement should free up the way practitioners share information under existing law. However there were concerns on how best to disseminate the message in a way that did not produce an adverse reaction for stakeholders.” [GIRFEC Board minutes, 12 February 2013]
When the Supreme Court said that ‘promoting the wellbeing of children and young people’ did not count as one of the exemptions in Article 8(2) of the ECHR that could justify state interference in family life, it essentially gutted GIRFEC policy and nullified practice ‘guidance’. But it had already infected public services and still causes untold misery for families.
The 2018 Data Protection Act that gives effect to the GDPR also hampered the government’s plans as any ‘wellbeing’ data mining now had to rely on fully informed, freely given consent in the absence of strict necessity.
In its 2015 Bara judgment, the European Court of Justice had also mandated that citizens be given advance notification of how their information would be used. This included data transfer between public bodies, which the Scottish Government has long wanted to merge into a single entity to advance its own data-driven surveillance agenda.
A new bill is currently in progress to incorporate the CRC into Scots law, which we support, but it clashes directly with GIRFEC policy which places state-determined outcomes above children’s self-determined human rights. They seem determined to miss that point!
The Scottish children’s commissioner has also proved to be a disappointment. He is selective in upholding Convention Articles and has refused requests for assistance by home educated children whose rights (and best interests) have been infringed. They were just told to go away.
We deplore the discriminatory gatekeeping, the deliberate conflation of rights with state ideology, and the hierarchy of rights and rights-holders that has been permitted to emerge in Scotland.
As home educators, we try to pre-empt encroachments on our freedoms. Scottish home education guidance is soon to be updated and we have been gathering research evidence, obtaining legal opinions, meeting with MSPs and co-ordinating action to ensure the legal framework is well understood, including how education law fits into the overarching human rights, data protection and equalities framework.
There’s no time to elaborate on this here, but it can all be found on our website.
As we know, Article 2 Protocol 1 of the ECHR mandates respect for parents’ religious or philosophical convictions in relation to compulsory education.
As we also know, some European states, notably Germany, prohibit home education, and court challenges have so far proved unsuccessful. What’s more, the totalitarian rot has spread to Sweden and now France, with others watching on enviously.
A recent legal opinion obtained by home educators includes a robust argument for retention of the status quo where home education is already a well-established legal option with demonstrably successful ‘outcomes’. Due to its longstanding ban, the status quo in Germany should not be seen or cited as a relevant comparator by hostile vested interests agitating for change in the wrong direction.
Across the UK, home education has always been an equal option and the duty to educate lies with parents.
Children have the right to education, but no rights in education – something we consider unsatisfactory given the number of children who struggle in schools. A curious double standard is applied by state officials, who want to compel children’s views under Article 12 on their home education, but never on their schooling! Although a child’s views may be volunteered (or not), Article 12 does not provide for compulsory or coerced state interrogation.
As Katarina Tomasevski, former UN Special Rapporteur on the Right to Education, observed (20 years ago now):
“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.”
Don’t we all know it!
We recognise the many challenges that face home educators across the globe and stand in solidarity with you all in pursuit of freedom in education. Thank you to the conference organisers and many inspirational speakers we have heard from over the past few days.
Let’s continue these conversations and divert the steamrollers!
[Replays of other conference sessions are available here]