REGULATING HOME EDUCATION: The Legal Situation in Great Britain

Record: Daniel Monk, “Regulating Home Education: Negotiating Standards, Anomalies, and Rights” in Child and Family Law Quarterly 21, no. 2(2009): 155-184

Summary: Monk, Senior Lecturer at the School of Law, Birbeck at the University of London, has been studying homeschooling for a few years now, his work largely concerned with challenging the dominant discursive tropes used by both advocates and critics of homeschooling, trying to get everyone to see that there is more at stake than the simplistic parent vs. government rhetoric suggests.  This new article is not available online, but a 2004 piece he wrote along these lines is available here.

In the present article Monk summarizes the current legal context of homeschooling in Britain and makes predictions for future policy directions.  Throughout, he is at pains to “present the issues in as balanced a way as possible” (p.157) in order to get leverage on them.

After defining home education (summarizing many variations of the basic conservative Christian vs. liberal secularist binary and noting many exceptions to those categories) Monk explains the current legal status of homeschooling in Britain, which has not changed since 1944.  Section 7 of the Education Act of 1996 explains how a child’s fundamental right to education may be acquired “either by regular attendance at a school or otherwise.”  Parents who wish to educate their children at home must provide an education that is “efficient” and “suitable” for the child.  As Monk summarizes, “the right to home educate is therefore conditional on parents complying on this duty.” (p.159).

British law lines up here with international law.  The UN Convention on the Rights of the Child recognizes a “right to education but not a right to attend school,” thus allowing for homeschooling.  Similarly, the European Convention of Human Rights explains in Article 2 of the First Protocol that “No person shall be denied the right to education,” thus establishing education as a fundamental right of children.  But it also allows for diversity of methods, “the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.” (p.160)

The European Court of Human Rights has clarified just where the fundamental right lay in its decisions Leuffen v. Germany (1992) and Konrad v. Germany (2006), both of which held that Germany is entitled to ban homeschooling if it wants to, for the fundamental right at stake is a child’s education, not a parent’s right to provide it him or herself.

After summarizing the legal situation, Monk provides a very adept summary of the debates between homeschool advocates and liberal critics regarding these issues of parent, State, and child rights.  Much of this literature is American and very familiar to most homeschooling researchers (Reich, Apple, Lubienski, HSLDA, etc.).  Lost in the debates about parent and child rights, however, thinks Monk, are “collectivist concerns.”  While Monk understands HSLDA’s fear of government taking over family rights, he resonates more deeply with worries that homeschooling (especially in Britain) is being used by some to opt out of engagement with the broader society.  He worries that homeschooling may contribute to the fracturing of liberal society along class and racial lines.

So, having established that homeschooling is not a fundamental right but is an admissible form of education nonetheless, how should it be regulated?  Monk considers three topics: registration, surveillance, and criteria.

Current British law respecting registration of homeschooling is a mess, explains Monk.  In some situations parents are required to register their home school; in others they are not.  Yet Local Authorities (LAs) are also required to make sure that children of compulsory school age are getting a suitable education, which they can’t do if they don’t even know if a child is being homeschooled.  The law is also clear that it is LAs, not parents, who are charged with determining what is a “suitable education.”

Recent legislation is clarifying all of this, however.  Monk describes the Education and Inspection Act of 2006 and the expanded guidance offered by the Department for Children, Schools, and Families (DCFS) in January 2009 of this law, which make it clear that LAs need to make sure that “children who are not pupils at school, such as those being educated at home, are receiving a suitable education.” (p.166-167).  Furthermore, LAs are charged with “safeguarding and promoting the welfare of children.”  Monk notes that since 2002 independent schools have been subject to much more rigorous government oversight on child welfare grounds, making home education’s independence here “increasingly anomalous.” (p.168)

Monk thinks that such duties imply that all homeschoolers should be registered, though he acknowledges arguments made by homeschooling advocates who disagree.  He also points out that registration can be seen as a positive, for registered homeschooling families are able to draw on many resources made available by LAs and institutions.

Next comes the topic of surveillance.  Do LAs have a right to visit home educators at home to check up on them?  The general principle is that LAs and homeschooling parents should work cooperatively to ensure that the child is receiving efficient and suitable education.  But what if this cooperation breaks down?  Monk relates several court cases over the past 30 years that have led to a less-than-clear situation.  British homeschooling advocates argue that parents have the right to refuse entrance to LAs on the basis of privacy rights enshrined in Art. 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.  Monk doesn’t think that argument will succeed in a British court, but he notes that as of now “with the absence of any clear guidance or recent and conclusive case-law, it is a matter of discretion for individual LAs to decide how to respond to a refusal to allow access.” (174)

Finally we get to criteria.  Monitoring education implies that there is consensus on what a “suitable” education is.  Increasingly, Monk notes, parents are turning to homeschooling out of frustration that public schools themselves are unsuitable.  Monk notes that various government efforts to define what an efficient and suitable education entail have left much room for individuality, thus making it very difficult for a LA to claim superior knowledge of what a child should be doing than a parent.  Monk notes that DCFS guidance to LAs makes it clear that “home educating parents are not required to: teach the national curriculum; provide a broad and balanced education; have a timetable” and many other things.  There is thus great curricular freedom for homeschooling.  All the DCFS guidelines require is that parents are consistently involved, that children are provided with stimulating learning opportunities, and that children have access to resources like books, paper and pen, physical activity, and social interactions.  Monk points out that this guidance, as well as several court cases, mean that a full-throttled “unschooling” approach would not pass muster in Britain–there must be some sort of “systematic approach to the learning of basic skills of reading, writing, and numeracy.” (177)

Two final topics where criteria come into play are socialization and civic education.  Regarding socialization, Monk has little to say.  He briefly summarizes some of the advocacy literature and notes that homeschoolers often rightly point out that socialization in schools is often not that great (he mentions bullying especially).  It’s clear that he thinks this isn’t the serious issue some homeschooling critics think it is.

Monk has much more to say about civic education.  The two concerns frequently raised about homeschooling here are first that it has the potential to weaken “national cohesion and democratic values” and second that it could be used to keep children from developing “their own views and values.” (p. 180) Both of these concerns involve a “right to exit.”  Do subcultures within British society have a right to exist independently of the broader whole?  Do children have the right to learn how to reject these very subcultures?

Monk notes that against the liberal tendency to celebrate common culture and individual autonomy are both religious conservatives and multiculturalists, both of whom, for different reasons, appeal to cultural particularity.  He describes the tensions among liberal theorists themselves over such matters too–some want to keep liberalism a matter of neutral procedural rules while others (like Rob Reich) seem to attach normative status to such ideals as autonomy and thus support prescriptive measures to enforce them.  Given such theoretical confusion, and given that homeschoolers on the whole have not proven to be a real threat to the social fabric, Monk does not foresee a major move toward mandated civic education for homeschoolers.  Indeed, the option of homeschooling is often seen as a plus by policymakers, for it gives parents who object to, say, sex ed in school, an alternative and thus makes it easier for public schools to teach such things.

Appraisal: This is a rich and informative article about official policy in Britain.  It does not, however, give much of a sense of British homeschoolers themselves.  The point of view represented is clearly that of the public education official who is trying to deal with this odd and growing phenomenon of homeschooling.  Monk’s summary and prescriptions, especially his consistent advocacy of collaboration and co-operation between LAs and homeschooling families, suggests that the situation in Britain may be a bit less tense than homeschool/public school relations used to be and sometimes still are in the States, but again, we don’t hear the voices of actual homeschoolers in this article.  Do British homeschoolers share the rhetoric of good will and collaboration?

Milton Gaither, Messiah College, author of Homeschool: An American History.

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