Written evidence submitted by Christian Concern, Christian Legal Centre

Call for Evidence from the Education Committee: “The inquiry will seek to understand the extent to which current arrangements provide sufficient support for home educated children to access efficient, full-time and suitable education, and establish what further measures may be necessary in order to facilitate this. It will also explore the impact of COVID-19 on home education, and any particular needs arising from the pandemic that need to be addressed.”

The call for evidence covers four areas to which our evidence is pertinent:

•            The duties of local authorities with regards to home education, including safeguarding and assuring the quality of home education;
•            whether a statutory register of home-educated children is required;
•            whether the current regulatory framework is sufficient to ensure that the wellbeing and academic achievement of home educated children is safeguarded, including where they may attend unregistered schools, have been formally excluded from school, or have been subject to ‘off-rolling’;
•            the role that inspection should play in future regulation of home education.

Date: 5 November 2020

Submitted to: Education Committee:

I. Introduction

1.      Christian Concern and the Christian Legal Centre support many individuals who home educate through our connections with those seeking support where Local Authorities, or other organisations have begun to contravene their parental and religious freedoms.

2.      Christian Concern representatives regularly engage with home education organisations to consider the concerns of home educating parents, and home education cooperatives. These represent hundreds of home educating families.

II. Summary of Questions to consider in Light of the Evidence Below

1. Has the committee considered the legal ramifications of any proposed ‘further measures’, on the erosion of parental and potentially religious freedoms and rights.
2. Has the committee considered the dangers of the increase in powers of inspection with regard to home education registration and regulation, given the record of unaccountable and inappropriate overreach by Local Authorities, Ofsted and the DFE?
3. Has the committee considered the financial and capacity considerations given the expected future post-Covid economic climate of financial restraint and the current capacity of Local Authorities to take on further responsibilities with limited staffing?
4. Has the committee considered public opinion on the removal of parental rights to withdraw generally, given the recent RSE related policy decisions where Sex Education has become much more difficult to exercise an opt out?

III. Legal Considerations

1. The statutory obligation to respect parental rights in education is reiterated numerous times in binding treaty law. The Convention against Discrimination in Education, for example, holds in Article 5(1)(b) that it is essential that States “respect the liberty of parents and, where applicable, of legal guardians, firstly to choose for their children institutions other than those maintained by the public authorities but conforming to such minimum educational standards as may be laid down or approved by the competent authorities and, secondly, to ensure in a manner consistent with the procedures followed in the State for the application of its legislation, the religious and moral education of the children in conformity with their own convictions.”[1] There has been a trajectory towards becoming highly suspicious of home educating parents when the vast majority exercise their right positively with much skill and commitment. Should registration and regulation increase, there is a danger that ‘minimum educational standards’ begin to include liberal secular beliefs which are in opposition to the religious and moral convictions of the parents in any monitoring of home education provision.

2. Additionally, Article 26(3) of the Universal Declaration of Human Rights  states that “[p]arents have a prior right to choose the kind of education that shall be given to their children.”[2] The United Nations Convention on the Rights of the Child, in Article 14, also clearly explains that in the provision of education states must respect the right of parents to raise their children, commensurate with their evolving capacities, in accordance with the parents’ religious convictions.[3] The Convention also requires, pursuant to Article 18, that parents, being the ones who love their children the most, have the primary role in deciding on the education of their children. The role of a Local Authority, and the Department for Education is to assist parents in their task, and not to hinder by excessive regulation and potentially unlawful monitoring of the home.

3. Equally pertinent is Article 18(4) of the International Covenant on Civil and Political Rights (ICCPR) which states that “[t]he States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.”[4] Many choose home education to make use of this right.

4. Protocol 1, Article 2 of the European Convention of Human Rights, as transposed into our domestic law through the Human Rights Act 1998, states: “In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions”.[5] ‘Any functions which it assumes,’ includes any form of registration or regulation. It is also a legal requirement that in making its policies, Local Authorities, Ofsted and the Department for Education respect, and neither undermine nor interfere with, home educators ability to bring up their children in accordance with their Christian beliefs through home education.

5. The European Court of Human Rights has repeatedly held that “it is in the discharge of a natural duty towards their children- parents being primarily responsible for the “education and teaching” of their children- that parents may require the State to respect their religious and philosophical convictions. Their right thus corresponds to a responsibility closely linked to the enjoyment and the exercise of the right to education.”[6] The Court has also held that “a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position.”[7] The State, and by extension the Department for Education, being the organiser of any registration, regulation, curriculum or policies must therefore not abuse its dominant position to force onto parents and their children, monitoring and interference which infringes these rights.

6. Given the trajectories and concerns expressed in part IV, as the Court has laid out: “the second sentence of Article 2 (P1-2) implies on the other hand that the State, in fulfilling the functions assumed by it in regard to education and teaching, must take care that information or knowledge included in the curriculum is conveyed in an objective, critical and pluralistic manner. The State is forbidden to pursue an aim of indoctrination that might be considered as not respecting parents’ religious and philosophical convictions. That is the limit that must not be exceeded.”[8] With greater legal powers to register and record religious reasons for home education, comes greater concern that such indoctrination from the state through ‘muscular liberalism’[9] will be enforced in homes. With regard to the content of the curriculum, the Department for Education has been found to use its authority to make extensive efforts to encourage secular liberal teaching as it relates to gender identity theory and has only recently backtracked under pressure from parents.[10]

IV. Local Authority, Ofsted and DFE Overreach

1. The Policy Exchange research ‘The Watchman Revisited; Curriculum and Faith in Ofsted’s New Inspection Framework’, authored by Iain Mansfield and Tim Clark, demonstrated clear concerns regarding this monitoring agency of the DFE.[11] Such agencies regularly demonstrate their lack of religious literacy.[12] Additionally their attempts to redefine their role as moral policemen is disturbing, as the evidence shows inspectors regularly stand opposed to the religious beliefs of minority groups, such as Christian home educators, as well as many other home educators who have religious convictions. Recommendations 6, 7 and 8[13], all indicate that there is much distrust of Ofsted and that inspectors have shown little understanding and much rigidity in their approaches towards those with religious convictions. This is despite their protestations at having improved their training.

2. When directly asked by Eli Spitzer, Headmaster at Talmud Torah Tiferes Shlomo, in his podcast "in conversation with HMCI" from October 2020[14], where she might believe that the line should be drawn for the right of parents to bring up their children in accordance with religious requirements, Ms Spielman did not directly answer the question. Instead, she argued that state expansion in modern times meant that the freedom requested by certain communities like the Orthodox Jewish community were archaic and hearkened back to a historical era. The current state model, she affirmed, was legitimately entitled to interfere more with children’s teaching against the wishes of parents. This, she implied, gave Ofsted the right to also inspect morals and values against the wishes of religious schools and parents. We strongly disagree that this is the will of parliament, or in any way appropriate.

3. Ofsted is functioning with little accountability. In reviewing the operations and effectiveness of Arm’s-Length Bodies (“ALBs”), which includes Ofsted, the National Audit Office concluded in 2016 that the sector remains “confused and incoherent” and that there is no “consistent overarching framework” for overseeing ALBs across the board.[15] This has led to consistent overreach. This is also true for Local Authorities who have little accountability for their actions, and could potentially be given a significant role in the lives of home educators, for which they would have little training, and at a time of decreasing capacity due to the likely economic environment and funding pressures.

4. Although an examination of schools’ teaching regarding the Equality Act would be presumed to be ancillary to the education and academic progress of pupils, HMCI has outlined the inspectorate’s position to take on a role not afforded it by parliament, this being, “Ofsted is also the main checking mechanism for the Equality Act.”[16] Any chosen curriculum by families or schools, is specifically exempt from the Equality Act.[17] However, in inspections, it is clear that Ofsted is not considering this exception, and is not treating all protected characteristics equally, contrary to the aims of the Act where there are nine equally important protected characteristics, including religion. Multiple inspection reports explicitly only focus on schools’ teaching of two out of the nine characteristics: sexual orientation and gender identity - to the noticeable omission of the others. In over half of recent inspection reports where Ofsted have failed schools for not teaching protected characteristics, the inspectors explicitly mention the lack of sexual orientation or gender identity teaching as the reason for the failure, areas which Christian home educating families wish to have autonomy to teach in conformity to their moral and religious convictions. In one recent Jewish primary school inspection report, sexual orientation and gender reassignment were mentioned nine separate times within a four-page document as evidence of how the ISS were not being fulfilled; other characteristics under the Act were not mentioned, including disability.[18] This is against their own requirements, as these judgements are inconsistent with Ofsted’s own guidance on the protected characteristics which clarifies as had been previously stated by ministers such as Nick Gibb[19], that a primary school will not be downgraded for a lack of this teaching[20]. Complaints of Ofsted hostility based on pre-decided assumptions about the ‘quality of education’ and pupil development have also made by the National Association of Jewish Orthodox Schools to the Secretary of State. On numerous occasions, the group has claimed that a “climate of hostility” has been exhibited by Ofsted inspectors at various partner schools, and that the high number of no-notice inspections targeting the schools in the network further evidenced biased analyses, and even antisemitism.[21]

5. Home educators regularly express to us their disquiet as to the powers of the state being enforced in their homes with regard to judging the moral teaching parents provide, teaching which is consistent with traditional Judaeo-Christian values and their personal religious convictions. Along with much anecdotal evidence, some notable and more easily referable examples of disruptive and unreasonable interference include: where the Local Authority and Social Care ombudsman agreed that the Local Authority had dealt with a home educator unjustly;[22] the case studies provided in Scotland by the Scottish Home Education Forum’s report in 2020;[23] those referenced by Cambridge Homeschool Online[24] where the author explains, ‘Sadly it has become apparent to me from reading many accounts of home visits over 25 years, that some LAs use visits to justify decisions already made. Reports are sometimes singularly biased and clearly intended to bully parents into returning their children to school.’

6. Ofsted has recently reminded us through the government website that it has powers to engage in surveillance.[25] Combined with the considerations already highlighted, home educators are rightly concerned that government authorities, other than the police, may be empowered to enforce ‘minimum standards’ of moral education in private homes. This opens the real possibility of this largely unaccountable body, or another arm of government, covertly investigating and monitoring private homes, under the guise of monitoring compliance to muscular liberalism.

6. We are concerned about the over-reach into the private lives of UK citizens and their families.  This over-reach is statistically significant and has had a negative impact on the integrity of family life. For example, the United Kingdom’s Children and Family Court Advisory and Support Service (CAFCASS) has reported a nearly 150% increase in the number of new child-care cases between 2005 and 2016. To put that into perspective, the number of cases in just over a decade increased from 6, 613 new cases per year, to 15, 485 new cases. In 2017-2018 the number of new cases rose again to 90,423.[26]  The result is that children are being taken into care at an ever increasing rate, and one of the agreed reasons for this has become the over activated Local Authority staff, due to the lowering of thresholds for investigation.[27]   The situation has led to experts, such as Dave Hill, President of the Association of Director’s Children’s Services (ADCS), calling the situation a national disgrace; and Sir James Munby, President of the Family Division, labelling it as a public crisis. Further government expansion of its potential supervision of families can only lead to a worsening of the current crisis. These tendencies for Local Authority overreach and the lowering of thresholds for investigation are of deep concern to home educators.

V. Financial and Capacity Issues

1. Home educating families are providing education for at least 60,000 children, as a conservative estimate given the data from Local Authorities. The amount allocated to government schools, depending on the age of the children is between £5,000-£6,000 per year. Home educating families are therefore supporting the government finances to the tune of between £300M-£360M per year. Should registration and regulation become onerous and pressurise parents to send children to their local school, Local Authorities would need to find significant numbers of places and finances to support this, at a time of inevitable tightening of budgets in the post-Covid economic climate. If only 15% of successfully achieving home educators felt they could no longer function under the regulatory environment developed, then between £45M-£54M would be required. This is not the time to make a decision which will lead to funding pressures in this area.

2. It was clear from the evidence provided in the 2018 call for evidence, that the government response was rightly not to require further monitoring.[28] It was clear that Local Authorities themselves stated that there was no further capacity for increased registration and regulation. Many respondents stated that home visits for all home educating families would have significant resource implications for the Local Authority. In the light of current funding arrangements, it was argued that authorities would be unable to provide regular engagement with families, making any assessment of suitability unaffordable and ineffective. Some of the local authority respondents also felt that without significant additional funding they would be unable to effectively monitor the suitability of home education. There would be substantial resource implications which, as the report evidence makes clear, would ‘exceed current capacity and funding levels already in place.’[29]

VI. Public Opinion

1. Questions about government intrusion into the moral upbringing of children have dominated news headlines in recent months including protests by parents over PSHE and RSE.  Over 118,000 parents signed a petition protesting the expansion of government involvement in the moral education of our children.[30] Now is not the time to further expand the scope of government incursion into the scope of private family life, particularly because many parents have chosen alternative means of educating their children precisely because of their concerns over what has been perceived to be government-sponsored and monitored moral indoctrination.

2. There is clearly the potential for registration to involve racial and religious profiling of home educators, either through explicitly requesting such information, or by requesting submissions which require detailed explanations of rationale, motivation and curriculum that inevitably result in the religious convictions becoming a matter of Local Authority record. In the wake of concerns over BAME discrimination, the discovery of institutional racism in the police, the recent report on Labour party antisemitism with the suspension of its former leader, and concurrent reports of Conservative party Islamophobia, now is not the time to introduce registration which can result in government authorities profiling families on the basis of their home circumstances and religious convictions, which often stem from their racial and cultural background. Indeed, we would contend that it would never be the right time to create such a detailed register, given the concerns raised in this document.

VII. Key Concerns

1.  We are concerned about overreach and the unnecessary and disproportionate surveillance of faith-based programs resulting from potential Local Authority or Ofsted scrutiny.  The legislative history of Protocol 1, Article 2 of the European Convention of Human Rights, which establishes a right to education, was meant to be a limited right whereby parents would have the greatest role and responsibility in how their children were to be brought up. This is echoed in Article 5(1)(b) of the Convention Against Discrimination in Education which calls on state parties to respect the right of parents to have their children educated in institutions other than those maintained by public authorities.

2. Given the increasingly ideological approach to sensitive moral issues taken on by Ofsted, the DfE, Local Authorities and even Parliament, it is fair to say that Christian ethos educators and others who are not formally registered with the Local Authority might have their freedoms undermined. Therefore, the rights of the parents to deliver or to send their children to these programmes to be brought up in accordance with their ethos would also be undermined, if any such register would to be created.

3. As set out earlier, Christian Concern and the Christian Legal Centre are concerned about expanding the scope of powers of Local Authorities in relation to education. Apart from families who are under a child protection plan, where legitimate concerns already exist in ensuring the safety and education of that child, we see no reason for further expansion. The role of government should be to reclaim a healthy and vibrant family culture. Instead of trusting families however, it has increasingly and worryingly, taken on the parental mantle itself.

VIII. Recommendations

1. This is not the time to make changes to the registration and regulation of home educators, due to legal, economic and public concerns.
2. Should any form of registration be decided upon this should be very light touch registration through a simple voluntary declaration of intentions to the Local Authority.
3. There should be increased scrutiny of the intentions and practices of Ofsted and the DFE as to whether increasing powers, both given and assumed, are appropriate, and careful consideration of how these agencies would be accountable to parliament in any oversight of home education

IX. Summary of Questions for the Committee

1.  Has the committee considered the legal ramifications of any proposed ‘further measures’, on the erosion of parental and potentially religious freedoms and rights.

2. Has the committee considered the dangers of the increase in powers of inspection with regard to home education registration and regulation, given the record of unaccountable and inappropriate overreach by Local Authorities, Ofsted and the DFE?

3. Has the committee considered the financial and capacity considerations given the expected future post-Covid economic climate of financial restraint and the current capacity of Local Authorities to take on further responsibilities with limited staffing?

4. Has the committee considered public opinion on the removal of parental rights to withdraw generally, given the recent RSE related policy decisions where Sex Education has become much more difficult to exercise an opt out?

November 2020

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