Should we stay or should we go?

We predicted a ‘second wave’ of interest in home education as the start of the new school session approached and we were not wrong! Every year we see a spike in enquiries and new members as parents come to the decision that home education is in the best interests of their children after the long summer break where families have had time to relax and recover from school-related stresses. This year, however, there has been an unprecedented uptick in numbers due to the lockdown, prolonged uncertainty and last-minute guidance from the government on the re-opening of schools.

After all that talk of ‘blended learning’, a staged return and a cautious approach to getting children back into ‘education’ (or more accurately ‘schooling’) parents were very belatedly informed that their children would be expected to return full-time from mid-August. For some, especially those who need the free childcare, it was a relief; for others, it was a far from welcome prospect and enough to set them off down the elective home educating pathway.

Those who came late to the home ed party, which kicked off when schools first closed and parents were cast overnight as their children’s sole educators, have been dismayed to find that the law mandates local authority consent for the withdrawal of pupils from council schools, although several exceptions apply. Parents using independent schools, whose children are about to enter P1 or S1 or who have moved areas can party on, but others have been left in a quandary, since council consent can take several weeks and schools are re-opening this week.

As the new session’s starting date loomed, the burning question on our forum remained:

Should we submit our withdrawal request and send the children back to school for a short time, or should we keep them at home in the interim period?

In ‘normal’ times our advice has always been to maintain attendance until the consent is processed, which should take no longer than the six weeks set out in statutory guidance, Where children’s attendance has already broken down or they are too ill or stressed to attend, we urge parents to notify the school of the reasons for absence and try to obtain medical certification to cover the interim period if at all possible.

Section 3.3 of the home education guidance states that, in the period following submission of the parental request

…the authority should take a reasonable approach to attendance procedures. In most cases it would be inappropriate to initiate or pursue attendance procedures in respect of a child awaiting consent to be withdrawn from school.

However, not all councils behave well and some individuals allow home-eduphobic personal prejudices to cloud their professional judgement. As our recent ‘Home Truths’ research demonstrated, it is often both a postcode and postholder lottery for home educating families.

Given the prevalence of inaccurate and misleading information that is proffered to parents by schools and councils alike (despite the current guidance being in place for 12 years), it is worth noting that all registered teachers, which includes most education officials who deal with home education, are obliged by the GTCS Standards for Registration (Section 2.2.1) to ‘have an understanding of current, relevant legislation and guidance such the Standards in Scotland’s Schools etc Act (2000), Education (Additional Support for Learning) (Scotland) Act 2004, the Equality Act 2010 and GIRFEC’. Misinforming parents about the law and applicable statutory guidance is therefore in clear breach of these professional standards.

Our advocacy and mentoring services have certainly been busy of late as we have been assisting parents in standing up for their rights and calling out misinformation by public servants who should really know better.

So let’s look at the law and, in particular, the concepts of unreasonably withholding consent on the part of the local authority and ‘reasonable excuse’ for parental failure to secure attendance that appear in Section 35(1) of the Education (Scotland) Act 1980.

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. [our bold]

As experienced home educators all know, no one requires permission to home educate per se, and the only consent required is for withdrawal from council schools (with several exceptions, mostly set out in guidance).

For consent to apply:

The child must be of school age (i.e. compulsory education age), which is attained at the date of commencement of the school session, usually mid-August, following his/her fifth birthday, although some parents opt to send their four-year-olds. We have covered issues around early entry in some detail here, noting that:

some four- and five-year-old P1 pupils may not have attained compulsory age, depending on the date of their fifth birthday, and can be withdrawn immediately.

The child must also have attended a public (i.e. council) school on one occasion or more. Reserving a place, commonly but inaccurately called ‘registration’, does not count. As long as the child does not set foot in a council school as a pupil (visits don’t count either), no consent is required. Parents who use independent schools are also exempt from seeking consent.

If the education authority considers there is no ‘reasonable excuse’ for a child’s non-attendance, it can, under Section 36, require an explanation from the parent.

It shall be the duty of the education authority if they consider that a parent has committed an offence against section 35 of this Act in respect of a child resident in their area, to serve a notice on the parent requiring him, within such time as may be specified in the notice (not being less than forty-eight hours or more than seven days from the service thereof) to appear (with or without the child) before the authority and explain the reason for the absence of the child from school.

Under Section 37(1)

if the authority are not satisfied that the parent is providing efficient education for him suitable to his age, ability and aptitude, it shall be the duty of the authority to serve a notice on the parent requiring him within such time as may be specified in the notice (not being less than seven or more than fourteen days from the service thereof) 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.

‘Reasonable excuse’ for parental failure to secure attendance at school is covered in Section 42. This ‘defence’ might apply where:

    • the school is not within ‘walking distance’ and no transport has been made available;
    • the child is sick; or
    • there are other circumstances which in the opinion of the education authority or the court afford a reasonable excuse [our bold]

Some parents have successfully argued that the provision of suitable education ‘by other means’ (home education) constitutes a reasonable excuse, mostly in circumstances where they believe the council has unreasonably withheld consent for their child’s formal withdrawal.

Government guidance on home education, to which local authorities must have regard, sets out the expectations for councils and possible grounds for the refusal of consent. Parents are expected to submit an initial outline of their proposed home education provision (which need not be detailed or replicate the schooling model) before consent is granted, and they usually  send this with their initial request. No forms or meetings are required and the council should base its ‘satisfaction’ or otherwise on the outline of provision, with reference to the suggested characteristics set out in statutory guidance. Local policy should reflect national guidance, which in turn must comply with (or be read down to comply with) overarching human rights, equality and data protection legislation.

Consent may also be delayed or withheld where the child is subject to compulsory measures of care or a supervision order, or in circumstances where there is a live child protection (not ‘wellbeing’) concern, referral or investigation. The school has no locus in the withdrawal process, and local authority ‘fishing expeditions’ and non-consensual information sharing are prohibited by data protection and human rights legislation.

Professional ‘opinion’, which, in our experience, is often rooted in ignorance and pro-school prejudice, does not trump Section 30 of the 1980 Act, which affords parents an equal choice of council schooling or ‘other means’ to discharge their duty to educate. Despite the government’s rights-respecting rhetoric, children’s views are immaterial when it comes to the means by which they are provided with compulsory education, although, unlike the school system, most home educators are sensitive to, and respectful of, children’s wishes.

It should further be noted that a breakdown in attendance due to school-related stress does not constitute a valid ground for refusing consent for formal withdrawal and the process should be completed within a maximum timescale of six weeks. 

Following this year’s unprecedented period of lockdown, during which schools have been closed and all parents have had to educate their children at home, many remain fearful of returning them to school, especially those in the shielding category, and believe that affords them a reasonable excuse for absence. As our recent survey showed, many have taken the decision to continue with home education and a significant number will keep their children at home pending local authority consent for their formal withdrawal.

While this course of action runs contrary to our usual advice, we believe that exceptional circumstances currently apply and that parents should not expect to be penalised for prioritising their children’s and their own health, safety and wellbeing. Indeed many schools have already responded positively to parents who have explained their reasons and intentions, with only a minority of head teachers actively seeking to obstruct parental choice.

Reassuringly, John Swinney recently confirmed that parents will not be punished for not sending children back to school.

On the question of parents facing punishment for not sending children back to school, he said the law was clear that parents had a legal duty to send their children to school but that they would not be punished for not doing so.

He said: “In the circumstances we’re in we’ve got to understand and try to reassure parents – and if we can’t quite reassure them and give them the confidence it’s safe for their children to return to school I think we’ve got to work sympathetically with them through those issues. We need to work with parents to properly address the anxieties and worries parents feel at this time.”

So our advice* has temporarily shifted from urging parents to maintain attendance while awaiting local authority consent (unless evidence of a reasonable excuse such as illness applies), to recommending that parents with Covid-related or other valid concerns notify their child’s school in writing of the reason(s) for absence in anticipation of their support and the local authority’s timeous granting of formal consent.

* offered in good faith but does not constitute legal advice

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