100 Days of #RadiCoolUnschooling – Day 22

OK…so I am reposting this blog titled #RadiCoolUnschooling and the Law from November 28th, 2017. It is a good overview of the law and case law on ‘suitable education’.

I would also recommend for further study Fiona Nicholson’s EdYourself. That has always been my primary source. Fiona was a huge help to me when I was dealing with that other LA years ago. Her blog is just tinier print and more legalease language. This is my attempt to translate into laymen’s language…and make things clear as mud.

I also recently discovered this report which while older does make reference by name to the case law. I am in the process of downloading, reading, and highlighting all of those to get an even better grip on the subject.

A reminder…I am NOT a solicitor or a barrister. This is NOT legal advice. This is a researched account backed up by years of home ed experience and dealing with Local Authorities in England and Wales. Seek legal advice if you need to…but be prepared to point your solicitors to this case law as most of them will know nothing about home ed or these cases.

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I am writing this post as it relates to England and Wales. Laws vary not only from country to country but state to state and sometimes even city/county. It is important that you KNOW the law that applies to you.

But EXCEPT in countries where home education is completely illegal you can IF you know the law find a way to make #RadiCoolUnschooling fit. It just takes some work sometimes.

For instance, California is one of the most restrictive states in America. Basically, home education itself is pretty much illegal. You must either create your own school or come under the umbrella of one. But that did not stop techie entrepreneur Elon Musk from unschooling his sons. He simply set up an ‘unschooling’ school for his sons and select children of his employs.

Most of us though have it much easier than that. But as the saying goes…ignorance of the law is no excuse.

Wikipedia gives this jumping off point to begin your research internationally. And the Coalition for Responsible Home Education provides this quick view state by US state.

But like I said for the sake of this blog I am going to look at England and Wales, my current residence. And then show you how using a bit of fancy footwork to make the square peg of #RadiCoolUnschooling fit their round hole of ‘education’.

Here, the law falls into three broad categories…England & Wales, European, and the UN Convention on the Rights of the Child. Though basically there is little disagreement, nonetheless it is useful to know what each has to say on the matter…

Let’s work in reverse order with this one…

It is not just England and Wales, but many countries who are signatories of the UN Convention on the Rights of the Child, who must meet these standards…

Article 28 (right to education)
Every child has the right to an education. Primary education must be free and different forms of secondary education must be available to every child. Discipline in schools must respect children’s dignity and their rights. Richer countries must help poorer countries achieve this.

Article 29 (goals of education)
Education must develop every child’s personality, talents and abilities to the full. It must encourage the child’s respect for human rights, as well as respect for their parents, their own and other cultures, and the environment.

Obviously there is NO mention in this section of home education or even parental rights or responsibilities. The protection in this case comes in that home education is not specifically prohibited. And in particular to #RadiCoolUnschooling, the exceedingly board definition of the goals of education.

I can and have argued that it is essentially impossible for any school to meet this standard…develop every child’s personality, talents and abilities to the full. One teacher developing the personalities, talents and abilities of thirty little humans…TO THE FULL?

I think it would be useful for you to have a look at this summary of the UNCRC. You may find loads of other ammunition in there…as I have.

And even with the impending (or not) Brexit, the UK remains bound by Article 2 of Protocol 1 of the European Convention on Human Rights which states:

“No person shall be denied the right to education. 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 is in conformity with their own religious and philosophical convictions.”

This one does specifically mention the rights of the parents…though it is not absolute as can be seen in that many other signatories have made home education either illegal or so difficult as to be impractical for most. So this one is a double-edged sword to say the least.

But finally we come to the nitty-gritty. In England & Wales, the ‘LAW’ has not changed since the Education Act of 1996 which gave parents the right to educate their children at home in Section 7. Specifically with the statement of ‘or otherwise’. In fact, you may occasionally still hear the term Education otherwise in lieu of home education. I particularly like the wording of this one…

“The parent of every child of compulsory school age shall cause him to receive efficient full-time education suitable –
(a) to his age, ability and aptitude, and
(b) to any special educational needs he may have,
either by regular attendance at school or otherwise.”

I love pointing out to people that even IF you choose to delegate the day-to-day exercise of your rights to schools…ultimately, the RESPONSIBILITY for ensuring your child receives and efficient and suitable education still lies squarely on YOUR shoulders.

Of course, that is a landmine of words…

• Efficient
• Suitable
• Age
• Ability
• Aptitude
• Special Educational Needs.

It has been left up to the Department for Education (DfE) and the courts to clarify and define those. And so far at least, touch/knock wood, those have primarily been in favor of home educators…and unschoolers.

Case law has been used over those past twenty years since the Education Act of 1996 to define many of those terms. As stated in the England Guidelines:

2.3 The responsibility for a child’s education rests with his or her parents. An “efficient” and “suitable” education is not defined in the Education Act 1996 but “efficient” has been broadly described in case law as an education that “achieves that which it sets out to achieve”, and a “suitable” education is one that “primarily equips a child for life within the community of which he is a member, rather than the way of life in the country as a whole, as long as it does not foreclose the child’s options in later years to adopt some other form of life if he wishes to do so”.

Looking at both the England and Wales Guidance documents, they specifically say:

• teach the National Curriculum
• provide a broad and balanced education
• have a timetable
• have premises equipped to any particular standard
• set hours during which education will take place
• have any specific qualifications
• make detailed plans in advance
• observe school hours, days or terms
• give formal lessons
• mark work done by their child
• formally assess progress or set development objectives
• reproduce school type peer group socialisation
• match school-based, age-specific standards.

The Welsh guidelines (page 8) even discuss the different approaches to home education, including this to say about unschooling…

The learner is encouraged to initiate own learning through exploration and engagement with activities of their own making or sourcing.

Parents facilitate access to opportunity but try not to guide or lead.

And in terms of Special Educational Needs (SEN) the guidance has this to say:

3.17 Parents’ right to educate their child at home applies equally where a child has SEN. This right is irrespective of whether the child has a statement of special educational needs or not. Where a child has a statement of SEN and is home educated, it remains the local authority’s duty to ensure that the child’s needs are met.

This does not though mean that Unschoolers or anyone else does not have an obligation to ensure their little humans receive an education…we have already established that fact. And the guidance documents does provide insight on those standards as well:

3.15 In their consideration of parents’ provision of education at home, local authorities may reasonably expect the provision to include the following characteristics:

• consistent involvement of parents or other significant carers – it is expected that parents or significant carers would play a substantial role, although not necessarily constantly or actively involved in providing education
• recognition of the child’s needs, attitudes and aspirations
• opportunities for the child to be stimulated by their learning experiences
• access to resources/materials required to provide home education for the child – such as paper and pens, books and libraries, arts and crafts materials, physical activity, ICT and the opportunity for appropriate interaction with other children and other adults.

Those four things…and legally those alone…are the only standard to which you MUST be accountable. Yes, you may be asked for samples of their work, or reports, or home visits. But you are not legally bound to do so.

But even hard-nosed Americans like me must bend sometimes…so over the course of the next few days, we will look at how I would use those guidelines to prove the ‘effective’ and ‘suitable’ education for PanKwake.