Ensuring a suitable education for all: The relationship between family and state

Published 02/06/2023   |   Reading Time minutes

The Welsh Government has recently set out some of the changes it believes will ensure all children receive a suitable education and support home educating families. The aim is to better equip local authorities to meet their legal duty to identify, as far as possible, children who aren’t registered at a school and not receiving a suitable education elsewhere.

Statutory guidance for local authorities was published last month and the Minister for Education and Welsh Language, Jeremy Miles, said a ‘home educator’s handbook’ will be published soon. However, the Welsh Government is still “progressing proposals” to support local authorities to create and maintain a database of home educated children, despite previously saying this would all be done by April this year.

This article provides background to the Welsh Government’s proposals ahead of the Minister’s statement to the Senedd on Tuesday (6 June).

What is the legal position?

Parents may choose to educate their children at home (elective home education). However, they must fulfil a legal requirement to cause their child to receive efficient full-time education suitable to their age, ability and aptitude and to any Additional Learning Needs they may have.

If it appears that a child may not be receiving a suitable home education, and the parents cannot demonstrate otherwise, the local authority may issue a school attendance order if it believes the child should attend school. Parents who fail to comply with a school attendance order could be prosecuted or issued with an education supervision order to bring about their child’s regular attendance in school.

4,681 children were known to be home educated in Wales in 2021/22, which is 9.8 in 1,000 pupils (up from 1.6 in 1,000 in 2009/10). This data only includes parents who voluntarily notify that they home educate, or it’s known because the child has been withdrawn from school. A Senedd Committee heard last year that the number of children home educated is likely to have risen following the pandemic.

Why are changes being made?

The Welsh Government initially considered a compulsory registration and monitoring scheme for elective home educated children back in 2012. This was a year after the tragic case of eight year old Dylan Seabridge who died in 2011 from scurvy. The inquest into his death heard that Dylan, who was home educated, had no contact with authorities in the seven years before he died.

A Child Practice Review into Dylan’s death recommended (as documented by the then Children’s Commissioner) that home educating parents and guardians be required to register their child with the local authority. The then Children’s Commissioner, Sally Holland, regularly called for action and advocated three tests for any new policy to be developed:

  • that all children in Wales can be accounted for and that none are invisible;
  • that every child receives a suitable education and their other human rights, including health, care and safety; and
  • that every child is seen and their views and experiences are listened to.

There is therefore a safeguarding aspect to the development of the Welsh Government’s proposals, although the recently published statutory guidance focuses primarily on the right to a suitable education. There have been a number of steps along the way to this position.

Having decided in 2014 against a compulsory registration and monitoring scheme, the Welsh Government issued non-statutory guidance to local authorities in 2017. However, in 2018 the Welsh Government subsequently announced its intention to issue statutory guidance, and make regulations that enable local authorities to compile a database of children not on any local authority education or school register.

The then Minister for Education, Kirsty Williams, said the proposals would not change the right of parents to home educate their child, but that:

the Government has a moral duty to ensure that all children receive a suitable education, and an expectation that local authorities will act on their legal duties to intervene when children are not receiving a suitable education or may be experiencing neglect.

What has the Welsh Government proposed to date?

There are four elements to the Welsh Government’s previously set out proposals for elective home education:

  • statutory guidance to local authorities (consulted on in 2019 and issued in May 2023);
  • a handbook providing information and advice to home educating parents (consulted on in 2019);
  • regulations requiring local authorities to maintain a database to assist them in identifying children not on any local authority education or school roll, and not receiving a suitable education (consulted on in 2020); and
  • regulations to require local health boards and independent schools to share information with local authorities about children/learners (consulted on in 2020).

Delays to taking the proposals forward

The Welsh Government announced in June 2020 that, due to the impact of the COVID-19 pandemic on its resources, it would be unable to complete its planned work on the guidance, handbook and regulations before the May 2021 Senedd election.

Concerned at a perceived lack of action and urgency, the then Children’s Commissioner Sally Holland, used her statutory powers to review the Welsh Government’s exercise of its functions. Her report in 2021 expressed disappointment that “no substantial change” had been achieved and that the issue would “roll over for a third successive Government term”. In response, the Welsh Government said, whilst it was unable make a commitment for a future government, it was still their intention to implement the reforms.

Sally Holland’s successor as Children’s Commissioner, Rocio Cifuentes, has continued to highlight home education as a priority area.

The current Minister for Education and Welsh Language, Jeremy Miles, told the Senedd’s Children, Young People and Education (CYPE) Committee in May 2022 the proposals would be taken forward in autumn 2022, and take effect in April 2023. Following the publication of the statutory guidance but absence of any timescale for the regulations in the accompanying statement, the CYPE Committee again wrote to the Minister last month asking for details.

Opposition to the proposals

Both the consultations on the draft statutory guidance and handbook, and on the two sets of draft regulations, showed there was some opposition to the proposals. A letter from Families First in Education Wales to the Senedd in February 2023 set out an updated position regarding some of these concerns. Points of opposition include what some home educators see as a presumption that children who are home educated particularly need to be ‘safeguarded’, and whether a local authority needs to see a child to determine whether they are receiving a suitable education.

The Welsh Government’s statutory guidance says “a parent’s decision to home educate is not in itself a ground for concern about the safety and well-being of the child”. However, it also sets out that if a lack of suitable education appears likely to impair a child’s development, local authorities should be prepared to “fully exercise their safeguarding powers and duties to protect the child’s well-being”.

The guidance also says it’s “not unreasonable for local authorities to ask parents about their approach and the education being delivered”. The local authority “should see and communicate with the child” as it will otherwise be “questionable whether the local authority can reasonably assess suitability of education and to know if evidence of the suitability of the education provided by the parent relates to that child”.

What happens next?

Having published the statutory guidance for local authorities last month, Jeremy Miles, is scheduled to make a statement on the subject in the Senedd on Tuesday 6 June. He might be expected to give details of next steps in publishing the handbook for home educators and the making of regulations regarding a database of home educated children.

You can watch proceedings on Senedd TV and read the transcript approximately 24 hours later.

Article by Michael Dauncey, Senedd Research, Welsh Parliament