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Leverage

As a bottom line we would have to be prepared for talks to break down at a point where the LEA dug in their heels and refused to budge on unsustainable ultra vires or illegal practices. The LEA has an incentive not to precipitate such a breakdown because there are sanctions that we can take. In the case of a transparent and indefensible breach of the law, such as an LEA directing school proprietors to adopt a fifteen delay in de-registration as Nottingham recently did, it should be easy, once all other avenues have been explored, to seek judicial review of their policy. In the case of Nottingham it was enough to threaten them with this for them to withdraw it. We may also complain to the District Auditor for misuse of public funds where there is insistence on the provision of an unwanted service the ‘client group’ has declined to consume! We can also complain to OfSTED of illegal harassment and breakdown precipitated by them in relations with us. Failing an OfSTED report is not of no consequence to an LEA.

Exampled arguments

This section attempts to answer some favourite arguments of LEAs, and often for that matter, government.

‘How are we to fulfil our child welfare obligations under ‘every child matters’ if we are not allowed to see the child?’

Firstly there is no statutory power to see the child.

This also needs challenging on human rights grounds (ECHR Article 8) in that it seeks to routinely invade the privacy of families the state has no reason to suspect of abuse or neglect. It is also disrespectful of parents and undermines their natural authority with and respect of their children if children see that their parents are to be routinely mistrusted to look after them, and require regularly inspecting by the government.

There is also the argument of efficacy. How is anyone to determine on the basis of one half hour or hourly meeting with the parent and child once or twice a year, that that child might be at risk of significant harm or neglect? The state does not have the resources to take proper care of those children who have come to its notice of needing care, such as Victoria Climbie, so it is hard to see how routinely checking on all children in this way would help them to focus on cases of genuine need that come to their notice. It is more likely to cause children in real need of protection from significant harm to be lost sight of altogether in a vast ocean of low level ‘concerns’ that in the opinion of this author are no legitimate business of government in the first place.

The argument that school affords the state the surveillance of children they need in order to determine whether a child is being neglected or abused is also spurious, quite apart from something which isn’t generally advertised to all parents as being a purpose of school, not surprisingly!

Teachers receive little or no adequate training for spotting such situations, many of which go undetected despite daily contact with teachers five days a week, year after year. With no more training than teachers receive, how is such minimal contact by LEA officers going to be sufficient to detect abuse? If this is relied upon, then community responsibility for ‘looking out for’ children in the community is absolved. As John Stuart Mill put it: “That which a government does for the people, it fails to do for itself”. The more irresponsible government determines that we are, the more likely they are to create a self fulfilling prophesy, ruining the society in the process, but of course increasing their power and control over the population.

Child protection is a benefit which should not be overlooked in establishing a friendly respectful relationship in which the LEA become familiar with a number of home educators over a period of time, not just through regular meetings, but also with those who avail themselves of any services the LEA choose to provide, something for which there is a gratifying take up for the LEA in Milton Keynes, because there is trust there from the outset. Not as inspectors of our families, but through meeting with home educators and their children in these respectful ways the LEA is much better placed than it otherwise would be to understand the difference between a child at risk, and a situation where spurious concerns grounded in prejudice are inappropriately acted on, thereby needlessly and ignorantly traumatising families and children.

The LEA that establishes respectful relations with its home educators, and learns to recognise what we are about is acting far more responsibly in relation to its duty to be vigilant to child protection and welfare issues, than the hostile LEA that jams its foot in your door, and determines that because the parent declines to show the officer signed and dated work, along with a timetable and curriculum, they can’t be educating suitably, and therefore intend to issue an SAO if these things are not produced forthwith. That and many other scenarios like it is simply child abuse of itself perpetrated by the very body charged with preventing it. Such a prejudice-riddled LEA is also much less likely to spot when something really is wrong, since it is not acting rationally and objectively, and it operates with a demonised fantasy of the home educator, and fantasies of educationally neglected children, or worse, simply because it doesn’t trust what it doesn’t understand. The home educator understandably employs a long bargepole with such LEAs, merely seeking to avoid needless prejudice and hostility, which is then misinterpreted by the LEA as ‘having something to hide’.

“We need to see the work in order to judge the education to be suitable which is our duty.”

There is no duty placed on the LEA to ‘ensure’ the suitable education of all children, only those in its schools. Their duty is contained entirely in

s437 of the Education Act 1996 and nowhere else, and is a duty to act if it appears that a child is not receiving a suitable education. If it does so appear, then and only then is there a duty placed upon the LEA to seek to obtain evidence of the suitability of the education sufficient to convince a reasonable person on a balance of probabilities only. A court would accept evidence given in any reasonable form or way, and therefore an LEA is similarly bound to do so. It can insist on no more than the court.

There is also an inherent educational prejudice implicit in the above claim. Not all legally recognised forms of education produce artefacts that might be called ‘work’, therefore to so insist is to pre-judge such forms of education by irrelevant and prejudicial criteria that cannot fail to condemn them.

“We have a duty under the Human Rights Act to ensure that the child’s right to an education is respected, and therefore need to be able to see the education”

This is similar to the above argument in that only where the education produces a volume of ‘work’ could the education be said to be capable of being seen at all. Even then, this is still to ignore that learning is an essentially private process that goes on inside the heads of the learner. The regurgitation of facts by testing is susceptible to the valid educational criticism that this is banal, and tests nothing more than short term recollection of that which is required to be memorised in order to pass the test. It is a criticism frequently made by teachers themselves who see at first hand the damage to the desire to learn this can do.

The LEA is entitled to hear from the parents about the provision they are making, and this should be sufficient to either dispel such concerns or trigger further investigation as already provided by statute.

Cont: What can be negotiated and Conclusion