Children’s Wellbeing and Schools Bill
(1 day, 21 hours ago)
Lords ChamberRead Hansard Text Watch Debate Read Debate Ministerial Extracts
Lord Wei
“(c) a local authority is—(i) conducting enquiries under section 47 of the Children Act 1989 (duty to investigate) in respect of the child, or (ii) taking action under section 47(8) of that Act to safeguard or promote the child's welfare, in a case where the enquiries mentioned in sub-paragraph (i) have led the local authority to conclude that the child is suffering, or is likely to suffer, significant harm (within the meaning of section 31(9) and (10) of that Act).”Member's explanatory statement
This amendment limits consent requirements to safeguarding cases under section 47 of the Children Act 1989. It removes subsection (3) of 434A, recognising special school placement as supportive, not suspicious, and ensures local authorities must evidence actual harm risk, rather than requiring parents to justify withdrawal.
Lord Wei (Con)
My Lords, I rise to speak to Amendments 203A and Amendment 215A, and to give moral support to Amendment 221. Before turning to these provisions, I wish to reflect briefly on the underlying scope and purpose of Clause 30.
Clause 30 as drafted is striking in its breadth. It hands local authorities the power to demand consent before a child may be withdrawn from a maintained school. I pick up here on a point made previously by the Minister about whether all parents could be subject to this. My assertion is that they could if a local authority decided, on the withdrawal of the child from school, to put the parent under a Section 47 order. Apparently, this is incredibly easy to do. The law requires only reasonable cause to suspect significant harm. It is a deliberately low bar, meant to protect children, and I have had correspondence—we can discuss this again in August—that indicates that it has at times been misused, just through a referral, for example, from the school itself. Let us say that a teacher does not really understand home education, is concerned that withdrawal might cause harm and alerts the local authority. Instantly, it can start an investigation. As an officer, you run that by your manager, who is busy—partly, perhaps, because there are many more families to investigate now that that the database exists. Perhaps there was a missed medical appointment, which I am sure we have all experienced, and they were late and could not see the doctor in time, perhaps because there was traffic. Suddenly, that might give rise to an S47. Although in theory, under the clause, only a certain subset of parents may be affected, potentially, in practice, depending on the ideological bias of the officers involved—and we have seen in some authorities that there clearly are some outliers—all parents may be swept into such measures.
Clause 30 as drafted hands local authorities the power to demand consent before a child may be withdrawn, yet nowhere does it properly limit the grounds on which that consent may be withheld. This gives the state a sweeping veto over parents’ decisions to withdraw their children, even when such withdrawal arises from urgent, pressing circumstances such as sustained bullying or grooming—I believe that you can be subject to an S47 if you are being groomed in a school—unmet special educational needs or serious mental health concerns. In doing so, it risks turning what should be a family’s protective step—for example, taking your child out of that circumstance of grooming by bullies in school—into a procedural trap.
This is a significant expansion of state power into private family life. It runs counter the well-established principle, under both domestic common law and Article 8 of the European Convention on Human Rights, that parents are presumed to act in their children’s best interests unless there is clear evidence to the contrary. By casting such a wide net without rigorous statutory safeguards, Clause 30 risks inviting inconsistency, arbitrary refusals and unnecessary confrontations that erode trust between families and local authorities. It is precisely this sort of overreach that sows the seed of future litigation and damages the co-operative spirit that effective safeguarding truly depends on.
Against that backdrop, Amendment 215 offers a much more balanced and constructive approach and, dare I say it, safeguard. It would require local authorities to offer parents a voluntary information session before they formally deregister a child to home educate. This session would do three modest but crucial things: provide an exploration of the parents’ legal rights and responsibilities, give details of what support services might be available, and lay out clearly what the process and consequences of withdrawal would entail.
This is not a barrier, a checkpoint or a covert mechanism for delay; it is simply an offer of information. It is a means to ensure that parents contemplating such a significant step—as we have heard, many more do so these days—do so with a full understanding of the legal and practical landscape, and it respects their right to choose while empowering them to make that choice wisely.
The decision to home-educate is rarely casual; many parents arrive at it after considerable distress. We have heard accounts from across England of children so overwhelmed by school that they stop speaking, suffer debilitating anxiety or face persistent exclusion. In such cases, parents often withdraw a child in a crisis, being understandably focused on immediate well-being rather than long-term procedural consequences. Those parents deserve our empathy, not our suspicion.
This amendment is rooted in sound constitutional principle. In R (Anufrijeva) v Secretary of State for the Home Department the law is clear. Procedural fairness is a cornerstone of our system requiring timely, clear information when rights are at stake. This is precisely what Amendment 215A would achieve, ensuring that parents understand their freedoms and obligations.
It is not an abstract problem. In evidence we have repeatedly heard of parents who did not fully appreciate the impact of deregistration. Some assumed that they could simply return their child to school at any time. Others did not realise the additional hurdles for exam access or the financial implications once local authority funding fell away. One parent who wrote in from the West Midlands said starkly, “We thought we’d just get on with it, but suddenly we were isolated. No support, no guidance and a local authority more interested in interrogating us than helping”. Another told us, “No one warned us about exam costs. If we’d known, we would have budgeted and planned differently”.
This amendment also helps to address the troubling postcode lottery that currently characterises local authority engagement. Some councils build relationships with home-educating families, others issue notices to satisfy and school attendance orders at extraordinary rates. In Portsmouth, for instance, in one recent year nearly three-quarters of all known home-educating families were issued a notice. That is not a safeguarding approach grounded in individual assessment; it is a blunt instrument that breeds fear and resentment.
Offering a voluntary information session helps to shift this climate. It replaces adversarial compliance checks with constructive engagement. It gives parents confidence that they understand their rights, that they are under no obligation to accept invasive home visits, and that they can approach home education in a spirit of informed partnership rather than fearful retreat. It is essential that this remains voluntary. To compel attendance would simply re-create the coercive environment that we seek to avoid. Some parents may never need further help; others may seek guidance. This gentle first step ensures that they start that journey from a place of respect and understanding.
Finally, I want us to remember the positive role that schools themselves can play. Head teachers are often the first to hear of a family’s intention to deregister. With this amendment in place, they would have somewhere helpful to direct parents to—not as a hurdle but as a supportive opportunity to become better informed.
In sum, this is precisely the kind of proportionate, relationship-based approach we should be championing, respecting parental authority, ensuring clarity of obligation, building trust and ultimately safeguarding children far more effectively than heavy-handed procedural entanglements could ever do. If in August we can perhaps implement more changes such as this, we may need fewer tribunals, although I agree they are a very important measure, and we may need fewer databases because parents and local authorities are working together in co-operation. I beg to move.
Lord Hacking (Lab)
My Lords, as I said at Second Reading and repeated earlier this afternoon, it is my contention on behalf of home-schooling parents that the provisions in this Bill are
“too long and too complicated”.—[Official Report, 1/5/25; col. 1414.]
To that end, I have given notice that I will oppose the Question that Clause 30 stand part of the Bill. I also put down Amendment 233A relating to Clause 31.
Perhaps we could look at the whole. I have argued against the long and complicated provisions in this Bill relating to home-schooling parents because they are frightfully oppressive on home-schooling parents and are in many ways unworkable because of the complicated language used in this Bill.
To look at it as a whole, the home-schooling provisions in the Bill are covered in Clauses 30 to 33. They cover 29 pages, from page 50 to page 79 of the Bill, and the clauses therein contain 17 very large new sections to be inserted after Sections 434 and 436 of the Education Act 1996. So the further complication is that not only do you need to have in your hands this Bill, or Act when it is passed, but you have to go back to the 1996 Act.
Baroness Morris of Yardley (Lab)
My Lords, I rise to ask a question on this set of amendments on registers. I have not spoken before, but I am absolutely supportive of the Bill; it is long overdue and I very much welcome it. But in the spirit of wanting to do this as practicably as possible, we need to make sure that we are not being too onerous on parents and local authorities in this area, and that what we do makes sense. In respect of what has just been said, if I am right, parents just have to provide information under new Section 436C(1), not new Section 436C(2), which is a much longer list. In fairness, it says:
“To the extent that the local authority has the information or can reasonably obtain it”,
so I am not overly worried about that.
I do not think that the questions being asked are unreasonable, as long as the list does not grow and we are firm with local authorities about not sneaking in extra questions that are not required, but—I am not sure where this is in the Bill—how often does this have to be updated by parents? When educating your child, if for some reason you wish to do an area of learning next month and you approach somebody new to do that—maybe for one hour a week—would you have to notify in advance, would you do an annual review or whatever? We need to be really clear around that area, as a sign of good faith that we are not deliberately trying to make this onerous. There should not be some kind of checking that means you can never make a mistake. I am just using this as an example for the Minister because, if we are not careful, the rules could be misinterpreted and this could get more cumbersome than we intended. Other than that, I do not think that new Section 436C(1) is unreasonable or time consuming, as long as it is interpreted in the way that was intended.
Lord Hacking (Lab)
My Lords, my noble friend was a most distinguished Secretary of State for Education, and I am very grateful to her for intervening in this debate. To answer her questions directly, she said that she was focusing only on new Section 436C(1), which is indeed the subsection that I particularly drew to your Lordships’ attention in covering paragraph (e). I have to disagree with my noble friend saying that it is okay; I do not think it is okay at all.
My noble friend asked what the onward obligation is to provide further information when, let us say, an extra teacher or the like is brought in. The answer according to the Bill is that there is a duty to inform the register every time, within 15 days, so that is the onward responsibility.
My noble friend is quite right that new Section 436C(2) refers to the local authority, not the parents. I pointed it out because there is an enormous number of requirements on the local authority in the registration process; they actually number 27. That is an illustration of how complicated the Bill has become and how unworkable it is in its present state.
Lord Lucas (Con)
My Lords, I very much support what the noble Lord, Lord Hacking, has said, as the Minister will know from my numerous amendments later in the Bill, which I look forward to discussing with officials.
I have three amendments in this group. Amendment 204 inquires after the process in subsection (3) describing condition A. I hope that the Minister can describe today what the Government’s reasoning is in making this change. When it comes to what the process is going to be and whether there is the capability in system to do it, I am happy to leave that to discussions with officials.
Amendment 210 questions the meaning of “without undue delay”. If the hereditary Peers Bill was amended to say that we were leaving without undue delay, I would regard that as a plus. Such phrases in the mouths of government tend to mean quite a long time. I would have thought that in these circumstances, where the education of a child is concerned, something tighter might be advisable.
Amendment 221 says that, if this is what it looks like, the parent really needs access to a tribunal. If a local authority is on song and doing things quickly and it all goes smoothly and fairly, fine, but there are a lot of local authorities—my noble friend Lord Wei named the most notoriously worst of them—where this is not the case, often just temporarily because of staff changes or short-staffing. In those circumstances, the parent needs some recourse, because it is the child that matters.
Baroness Barran (Con)
My Lords, I have two amendments in this group. Amendment 204 in my name and that of my noble friend Lord Lucas would narrow the scope of local authority powers to withhold consent to home education, in this case to exclude children in special schools. The driver of this—I looked at the Explanatory Notes but could not see anything that explains why special schools are all included—is that we seem to be treating parents of children with special needs in the same way as parents where there is an active investigation from children’s services and that feels disproportionate. There is also a risk of a conflict of interest where home education could be discouraged if the costs of providing therapeutic support to a child might be higher in that setting than in a special school, even if that was in the child’s best interests.
My Amendment 219 is a sort of common-sense amendment on an issue that I hope the Minister can clarify at the Dispatch Box. It seeks clarification that, if a local authority was to refuse consent to a parent to educate their child at home, it would need to provide the parents or carers with a statement explaining the reasons why, including the costs and benefits to the child. I assume that this would be good practice anyway, but if the noble Baroness can confirm that, that would be helpful.
I am sympathetic to the clarity that Amendment 210 in the name of my noble friend Lord Lucas would bring in terms of timings, but I think that Amendment 215A would be unduly onerous for local authorities. The noble Lord, Lord Hacking, expressed concerns about the complexity of Clause 30. I am with him in that I think there is work to be done on Clause 30. He also focused on Clause 31 in his remarks, but I will cover those points in the next group.
Lord Crisp (CB)
My Lords, I am sorry; I missed my turn to jump up. I wanted to make two remarks. First, the noble Lord, Lord Hacking, has drawn the big picture of a range of issues that concern us all and I absolutely agree with the noble Baroness, Lady Barran, that we can hopefully work through those in meetings or in Committee in a bit of detail. There are many points to come back to on that.
The one that I want to pick up on is Amendment 221, from the noble Lord, Lord Lucas, and others, on the right of appeal. It goes back to a point that I made earlier: the relationship between local authorities and home-educating parents is the vital one in all of this. In the end, we are providing the legislative framework within which that will operate. At a time when there is clearly a lot of suspicion, confusion and so on, a right of appeal will help to deal with that situation. It seems common sense to have a right of appeal to a tribunal.
The Minister of State, Department for Education (Baroness Smith of Malvern) (Lab)
My Lords, we have got to group 3, which is good. I start by addressing the Clause 30 stand part notice tabled by my noble friend Lord Hacking. Clause 30 sets out the requirement that a child who is on a child protection plan, who is the subject of a Section 47 inquiry or who is registered at a special school cannot be removed from school to be home-educated without local authority permission.
We have set out clearly those instances—my noble friend did not necessarily agree that it was clear, but I hope that I will make it clear now—where children will fall within the scope of Clause 30 and so require consent in order to be home-educated. Specifically, it will apply to pupils in England who are of compulsory school age and for whom at least one of the following applies: the child attends a special school and they became a pupil at that school through arrangements made by the local authority; the child is subject to child protection inquiries under Section 47 of the Children Act 1989; or there is a child protection plan in place. The intent of the legislation is that, if you do not fall into one of those categories, you do not need to seek the consent of the local authority in order to home-educate your child. There is a narrow and specific group of children for whom Clause 30 suggests that their parents will need to seek the consent of the local authority.
Lord Hacking (Lab)
I thank my noble friend the Minister. She has lucidly identified what we now know is the correct position and I am very grateful to her.
Baroness Smith of Malvern (Lab)
The children who are subject to child protection inquiries and plans are among our most vulnerable and the children who attend special schools are likely to have the highest levels of need. It is necessary that local authority consent is sought in those scenarios to ensure that these children are safe and suitably educated.
Even then, Clause 30 does not mean that these eligible families will not be able to home-educate their children. We are simply requiring the local authority to take a closer look in those circumstances. It may, in any of those three categories, be wholly appropriate for those children to be educated at home, but it is also right, given the specific circumstances, that the local authority that has responsibility—or where those children live—looks at that case and gives consent for home education in those narrow categories of cases.
We want local authorities to know which children in their areas may be home-educated and to make an informed decision to determine what will be in the best interests of the child in those circumstances. Clause 30 is underpinned by a review process; I will return to that in a moment. Statutory guidance will also be published to help schools and local authorities to carry out their new duties consistently from authority to authority and in a proportionate way.
I turn to the specific amendments. Amendments 203A and 204, in the names of the noble Lords, Lord Wei and Lord Lucas, seek to remove the requirement for parents to obtain local authority consent to home-educate should their child attend a special school under arrangements of the local authority. The Government believe it is important to retain this requirement. We totally recognise that parents of children at special schools have their children’s best interests at heart, just like other parents. However, children in special schools often have very complex needs that would be difficult for their parents to provide for at home. The loss of the support the child receives in a special school may be a major upheaval in the child’s life. Clause 30 retains an additional check that there are no educational suitability issues resulting from the loss of this support and that home education would be in the child’s best interests. It is clear that this is a different nature of concern from that represented by Section 47 inquiries or a child protection plan.
Amendment 210, tabled by the noble Lord, Lord Lucas, wants to specify a timeframe for the home education consent decision to be made. I wholly share the noble Lord’s desire for decisions to be undertaken as quickly as possible. We think that the current wording in the clause, “without undue delay”, ensures as prompt a turnaround as possible. If we had an arbitrary timeline for this process—28 days, for example—that would imply that every decision was as straightforward as any other. Timings are likely to be different, depending on the circumstances of the child. By necessity, because these are children who already have other needs and requirements, the process could be complex and will involve multi-agency collaboration and information-sharing to reach a decision.
Amendment 215A seeks to ensure that local authorities offer parents an information session on home education as part of the consent process. I agree it is important that the decision to home-educate is an informed one. But the duty to secure a suitable education rests with the parent, not the local authority. With this in mind, requiring local authorities to offer mandatory information sessions would not be appropriate. It is parents who should be taking responsibility for researching their educational choices. Parents should carefully consider their responsibilities and the financial implications of home-educating before requesting permission to withdraw their child from school. We will ensure that the department’s relevant guidance provides key information that a parent needs to consider when contemplating whether to home-educate. Local authorities and schools can signpost to this should they become aware of parental intentions to home-educate.
Amendment 219, tabled by the noble Baroness, Lady Barran, seeks to require local authorities to provide a statement of reasons to parents when refusing a request for consent. As the noble Baroness suspected, it is the case that local authorities are already obliged to provide their rationale for such a decision. We intend to make this clear in the relevant statutory guidance, which will need to be updated so that relevant professionals know what is required of them.
Finally, Amendment 221, tabled by the noble Lord, Lord Lucas, looks to provide a tribunal appeals process as a review in the case of a local authority’s decision to refuse to grant permission to home-educate a child. We do not believe that this amendment is necessary because Clause 30 already provides for a review process. Parents who disagree with the local authority’s decision to grant or refuse permission to home-educate their child can refer the decision to the Secretary of State for review. They will carefully consider the full facts of the case. Having done so, the Secretary of State has the power to either uphold the local authority’s decision, to direct the local authority to grant consent or to refer the question back to the local authority for review.
Lord Wei (Con)
I am grateful to the Minister. I believe that this appeal process to the Secretary of State already exists. Clearly, it is a very difficult situation for the Secretary of State to be the tribunal for the parents, if the parents feel that the local authority or the Government have not been supportive of their desire to home-educate. I would be grateful if the Minister could let us know how many times, when a home-educated family has requested support from the Secretary of State to overturn a local authority decision, that has actually happened. According to the statistics I have, there has never been such an instance. I wonder whether, if this were to be tested in a court or by some other mechanism, this form of procedural appeal would not really muster the kind of belief that the Minister has. Might she reconsider looking into the various forms of appeal that we will propose in later groups of amendments, or indeed look again at the idea of a tribunal?
Baroness Smith of Malvern (Lab)
This legislation introduces the consent process. People have not gone through this process, with the specific, narrow categories of children and families for whom it applies. Does the noble Lord want another go?
Lord Wei (Con)
I am referring to other instances, which home-educated families have referenced, where they have written to the Secretary of State for Education —under the current regime, not the future one—and where no action has ever been taken in their favour. Perhaps we can discuss this in August.
Baroness Smith of Malvern (Lab)
Let us not talk about what will happen and when in terms of engagement with my officials. Just to be clear: as I said at the beginning of my remarks, that engagement will enable noble Lords to get an understanding of the way the Government intend to implement these provisions and to get some assurance around the processes that will be used. It will not be another opportunity for noble Lords who fundamentally oppose what the Government are doing—I am thinking of the noble Lord, who started his contribution by saying that he fundamentally opposes what we are trying to do here. I am not sure that the engagement will be particularly helpful for persuading, through officials, the Government to wholly change their approach to this. As I said, it is intended to look at the detail and to provide some assurance about how the processes will work.
I will reiterate the point I made previously. Clause 30 is introducing a consent mechanism and, specifically, a review process of that consent mechanism. Home-educating parents may well have written on other issues to the Secretary of State and been dissatisfied with the response that they received. However, that is different from the review process that is spelled out in legislation in Clause 30.
I turn to the points made by my noble friend Lady Morris. She is right. She asks questions that are the subject of amendments to be debated in later groups, but they are very reasonable. She asked about how much time a child would need to study with a provider for it to be reported, and how often and how quickly parents would need to update the details about that. Those are precisely the types of issues that would be subject to the further consultation around the regulations and guidance, including with home-educating parents and others, to ensure that we do that in a way that balances the burdens and requirements on parents, alongside ensuring that the local authority has the basic information that it needs to make the scheme work properly. In this area, there is considerable scope for consultation and engagement about how precisely that will work. I hope that answers my noble friend’s question and that the noble Lord, Lord Wei, will feel able to withdraw his amendment.
Lord Hacking (Lab)
I am very grateful to my noble friend the Minister for her flexibility on the notification period, which in the Bill currently is 15 days. It is very nice to hear that the Government and my noble friend can be more flexible about it and are prepared to discuss it. I thank her very much indeed for that. I gave a very strong indictment against new Section 426C—
Baroness Smith of Malvern (Lab)
Can I just clarify whether my noble friend is concluding the group or intervening on me?
Lord Lucas (Con)
In Committee, noble Lords may talk as many times as we like. We will try to keep it short though.
Baroness Smith of Malvern (Lab)
Does my noble friend want me to respond again? That is what I would like to know.
Lord Hacking (Lab)
I am getting up to thank the Minister for her willingness to consider the timetable for the notification by the schooling parent of any changes in the educational plan, which they will have had to give already in detail under new Section 426C(1)(e). I am asking her, as I did in my speech, whether she and the Government would be willing to look at the actual terms of subsection (e), which have been widely described as very onerous. I gave examples of that, such as the need to give details of Sunday schooling. I also pointed out that that type of information is not sought at all from parents with children at state schools. I remind her that, after the very successful meeting with the Minister, Stephen Morgan, on 17 June, I wrote a follow-up letter on 20 June, copying in my noble friend. I asked specifically whether the provisions in subsection (e) could be reviewed, with a schooling parent, to find a practical answer. I must suggest again that, in its present form, it is most onerous.
Baroness Smith of Malvern (Lab)
The questions that my noble friend asks are, I think, the subject of amendments in later groups, which is when I had presumed we would come to those details. I will stick to that, if that is okay.
Lord Lucas (Con)
I am very grateful to the Minister for what she said. I entirely understand the limitations of discussions with officials, which is why I want to talk to her again about tribunals. Tribunals are an established part of mediating between the citizen and the state. In situations like this, or in many circumstances similar to those we are talking about—and this is by no means the only time we will discuss this; the next time will be when we are talking about best interests—when you have a hard-pressed local authority that may have a particular prejudice against home education and may be making life extremely difficult, as some of them do, you want an effective right of appeal. The system of appeal to the Secretary of State has existed in various forms in various bits of legislation for a long time. I am aware of one occasion when the Secretary of State agreed with the complainant. It does not work as an effective forum. It is not set up to be an effective forum. It does not allow for balanced and deep argument. The department is just not set up as a tribunal: it is not staffed as a tribunal, nor skilled as a tribunal. It is not the right place. I just say to my noble friend Lady Barran that I would very much appreciate her support for a tribunal amendment at Report, because that is what this appears likely to come to.
Lord Wei (Con)
We have heard in discussing this group of amendments a number of excellent suggestions for trying to take the edge off these complex—as the noble Lord, Lord Hacking, said—and, in my view, quite heavy-handed requirements on families. On the previous group, the Minister was very kind in offering discussions so that we can move forwards. Even though I have said that I oppose the register totally, that does not mean that I am shirking my responsibility as a legislator to help improve this legislation and to make it practical, based on the experience of someone from a home-educating family and having heard what was said by many Peers who have contributed to the debate. We are trying to make this practical and to make it work, so that people can get on with educating their children and local authorities can catch the perpetrators they want to catch.
There have been discussions about the tribunal, appeals and the fact that the department’s appeals process generally does not seem to behave in the way you would expect of a proper appeals process when parents complain directly. We have heard some quite sensible amendments in this group and the Minister has not indicated that she is willing to adopt any of the ideas in them. We will see later on. We appreciate the clarification that, when we meet officials, we will be told what the Bill is about and why it has been written in this way, but I hope we can also improve the Bill, which is the intent of us all. There have been suggestions on ways to improve its wording, in order to treat children in special schools and their parents with a bit more care and to have a statement of costs and benefits. These do not seem unreasonable.
I am afraid I am hearing a bit of a “state knows best” argument—that it should have 28 days to give a reason for its decision whereas parents should have only 15. That does not sound very fair to me and I am not sure it will sound fair to the British public, let alone to home-educating families. However, in the interests of time and given that we will discuss in further groups and potentially over the summer more of what we have talked about today, I will reflect on what has been said. I may return to this on Report but, for now, I beg leave to withdraw my amendment.
The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)
I must alert the Committee that, if Amendment 205 is agreed to, I cannot call Amendment 206 for reasons of pre-emption.
Amendment 205
Lord Lucas
Member's explanatory statement
This amendment seeks to allow a debate on the effects of this clause and of the reasons for section 47 enquiries, and the intersection with abusive relationships.
Lord Lucas (Con)
My Lords, I will also speak to Amendment 206. My concern here is that Section 47 has a very broad class of orders. Some are extremely serious and some, frankly, are irrelevant to whether someone should be concerned about a child being home educated. The amendment is to get some sense, which I am very happy to leave to further discussions, of how one deals, for instance, with spurious complaints from a former abusive parent who just wants to mess up the other parent’s life.
The overall statistics show that home-educated children are twice as likely to be referred to children’s social services, yet are much less likely to have a child protection plan result from that referral. There is a prejudice towards referring children who are home educated or whose parents are thinking of home educating them. We need to understand that in order to provide some circumstances that allow officials in local authorities to feel comfortable about taking informed professional decisions, rather than feeling vulnerable doing anything other than refusing. I look forward to discussing this at a later opportunity. I beg to move.
Baroness Barran (Con)
My Lords, I will speak to my Amendment 207. Ever the optimist, I hope the Government will take it seriously and bring it back on Report with a “g” in front of it.
The amendment has two parts: the first extends the right of a local authority to withhold consent to home education for a child or their family who is in receipt of services under Section 17 of the Children Act 1989; the second extends this to children who have ever been classified as a child in need of protection under Section 47 of the Act. To be clear, both parts would give local authorities just the discretion to withhold consent on a case-by-case basis. Clearly, I am not proposing a blanket refusal, but, as drafted, the Government’s position is not altogether clear, although I suspect that the noble Baroness will tell me that my drafting is not altogether clear either.
All children who are in special schools would now be within scope, as we debated in the earlier group, of the local authority’s right to withhold consent, but not those under Section 17 where there are safeguarding or neglect concerns. That just feels the wrong way round in terms of priorities. I appreciate that my drafting could focus more narrowly on those children defined under Section 17 of the Act to focus on safeguarding and neglect, but it is curious not to focus on those children. Unlike my noble friends, I do not think it is easy to get either Section 47 or Section 17 status and I worry that the bar is too high with just the current Section 47.
On the inclusion of children who have ever been subject to a Section 47 child protection plan, we talked earlier about the tragic case of Sara Sharif. The Minister in the other place said that
“we cannot say for sure what might have made a difference, but we will learn lessons from the future … local child safeguarding practice review”.—[Official Report, Commons, Children's Wellbeing and Schools Bill Committee, 30/1/25; col. 297.]
I think I am right in saying that Sara Sharif had been put on the child protection register at birth. She came off the register and, as we know, was removed from school and died, tragically. Without the changes in my amendment, the one thing we can be sure of is that the proposed law as drafted would not have made any difference to her.
I know that both Ministers on the Front Bench want to get this right; I am just trying to state the reality that if a child has ever been considered to be vulnerable enough to be subject not to a Section 47 investigation but to a child protection plan at any point in their short life then that is a massive red flag that needs to be removed before consenting for them to be educated at home. I respect the probing Amendments 205 and 206 in the name of my noble friend Lord Lucas, but I support the Government’s approach to giving local authorities the power to withhold consent in cases involving child protection.
Lord Frost (Con)
I want to underline the points made by my noble friend Lord Lucas on Amendments 205 and 206, which I have also put my name to. Section 47 is obviously a very difficult area for the reasons the noble Baroness, Lady Barran, just underlined, and it obviously needs to be taken seriously. At the same time, as my noble friend Lord Lucas said, a debate needs to be had about where we are drawing the borderline, whether there are areas where Section 47 need not be an automatic barrier to home education, whether there needs to be a further process, or whether the process is different in some cases compared with to others. At the moment, it is a very broad and straightforward yes or no test. As we know, as has been said and no doubt will be said again, there is evidence that this Section 47 process can be hijacked in certain circumstances and in certain kinds of relationships just to disrupt, cause trouble or make life more difficult, so we have to be sensitive to that.
I certainly think that, again, it is something perhaps better explored in these famous August discussions than necessarily in the detail now, but it is important not to take a completely black and white view on this. I will not labour the point, but I also think it underlines the need to have a proper appeal process and tribunal to take the sensitivities of the particular cases properly into account.
Lord Addington (LD)
My Lords, very briefly, the noble Baroness, Lady Barran, points out that intervention in schools can be a protection. The Government’s thinking about the future of this and the future interaction would be well worth hearing.
Baroness Smith of Malvern (Lab)
In group 4, we have an interesting combination of some amendments suggesting that the Government are going too far in their proposals around the hurdle for having to seek consent to home-educate and others suggesting that they are not going far enough. I will try to find a way through the centre of this, because what they all have in common is seeking to explore the rationale for the local authority to have to provide consent before a parent can withdraw a child from school to home-educate—in this case, where the child is subject to a child protection inquiry
I turn to Amendments 205 and 206. Just to be clear, the Government believe that the consent measure with respect to Section 47 inquiries provides an important but proportionate safety net for children subject to child protection inquiries and plans. To clarify something that the noble Lord, Lord Frost, said and to reiterate this, the consent provisions are not an automatic bar to these parents home-educating. It could well be the case that, notwithstanding the fact that a child was subject to Section 47 inquiries or even under a child protection plan, the local authority felt it was appropriate for, or was willing to give consent for, that child to be home-educated. To reiterate what I said, it is a requirement for the local authority to consider the circumstances of that child, given that they have come under the auspices of children’s social care through Section 47 of the Children Act. Our view is that this should be done as part of its wider decision-making on whether a child needs protection and the planning that follows that.
There is some suggestion, which I really disagree with, that local authorities would find it easy to jump to a Section 47 inquiry simply to prevent a parent being able to home-educate their child. There are a lot of consequences to undertaking a Section 47 inquiry. I would find it hard to understand why a local authority would be so keen to prevent a parent home-educating if there were no reasons to stop them or want to get itself into the burdens around a Section 47 inquiry if it did not think it was important to do that. Of course, it is not just what a local authority believes about the circumstances of a child. For a child to be the subject of a Section 47 inquiry, they will have already hit a threshold of actual or likely significant harm. That is a high threshold. An inquiry should certainly not be initiated purely because a parent has decided to home-educate.
I note the understandable concern of the noble Lord, Lord Lucas, about how this measure could be used in an abusive relationship, where false or malicious allegations regarding the safety of a child, for example, might be made to continue to control or harass an individual. The sad reality, of course, is that it is not only with respect to issues about home education that that might happen. It could happen, and does happen, in many circumstances where local authorities are making decisions about children. For that reason, we are confident that this would not be something unusual or unheard of for local authorities, and that they do have robust policies and processes in place to consider information and evidence about child protection concerns, including recognising and handling malicious allegations. Perhaps the noble Lord could be provided with some more examples of how local authorities would handle this type of circumstance, to provide some reassurance. Given that a child will be the subject of a Section 47 inquiry only where there is actual or likely significant harm, it is reasonable that checks should be undertaken before such a child can be removed from school for home education.
Amendment 207, tabled by the noble Baroness, Lady Barran, focuses on bringing all children receiving support and services under Section 17 of the Children Act, known as “children in need”, and any child who has ever been the subject of a child protection plan in the past into the scope of the consent measure. We share her commitment to ensuring that all children are protected from harm, and recognise that, while home education is not an inherent safeguarding risk, it can of course mean that some children could slip under the radar. However, we believe that this amendment would be disproportionate. “Children in need” is a very broad group of children and many will receive services which are nothing to do with safeguarding concerns or particular educational needs.
I think the noble Baroness was suggesting that there might be ways in which it would be possible to have a definition that looked at different elements of Section 17 concerns, and perhaps I can come back to her on that point. I think one of her reasons for suggesting it is that she understands, of course, that, for example, all children with disabilities are automatically included under Section 17. We certainly would not want to suggest here that any child with disabilities whose parents wanted to home-educate them would necessarily need to seek consent. I also draw her attention to the deliverability of a measure that includes both children in need and children subject to child protection activity in the consent measure.
In the year to the end of March 2024, there were 399,500 children in need, compared with 224,520 child protection inquiries and 49,900 children on child protection plans. As noble Lords can see, it would be both disproportionate and overly burdensome on local authorities to make a consent decision for every parent who wished to withdraw their child from school for home education where that child is receiving help under Section 17: it would be roughly a doubling of the potential number of children who might need it.
Baroness Barran (Con)
From memory, are there not 400-and-something thousand children with an EHCP who will be within the kind of consent framework? Obviously, the vast majority of the 400,000 children who are under Section 17 are not going to be home-educated. I take the noble Baroness’s point; I am just trying to say that we have one group that is in and another group, where we suspect potential abuse or neglect, that is out. That just feels like an odd split.
Baroness Smith of Malvern (Lab)
I recognise that point. On the special school point, it is not sufficient to have an EHCP to need consent to withdraw your child to home-educate; it is if they are in a special school. The rationale there is that you are changing their schooling and removing them, by definition, from something that contains very specific levels of support, otherwise it would not be a special school. It is the consideration of that impact that is the reasoning behind the special school intention here.
So we are confident that the consent measure, as drafted, is focused on the right groups of children and that it is proportionate. I hope that I have demonstrated the proportionality of this measure and that it is part of a wider set of activities that we have discussed previously on the Bill, about strengthening requirements to protect children at the earliest opportunity. I hope therefore that noble Lords will not press their amendments.
Baroness Barran (Con)
Even more briefly, I did not hear the Minister’s response in relation to children who have been on a child protection plan. Could she be very kind and write to me, in the interests of time, because that is also extremely important?
Baroness Smith of Malvern (Lab)
Yes, I recognise that. There are still questions about burden there, but I understand the noble Baroness’s point, and particularly her reference to the Sara Sharif case. On that case, we are still awaiting the detailed review from the safeguarding panel in order to be able to determine the causes there, but I understand her point and will write to her about that specific group of children.
On that basis, I hope noble Lords will feel able to withdraw or not move their amendments.
Lord Lucas (Con)
My Lords, I am very grateful to the noble Baroness for her replies. I look forward to meetings after today to go into these matters further, but I very much understand what my noble friend Lady Barran is saying with her Amendment 207. It convinces me that, if we can insert a tribunal into this process, we will make all these difficult questions flow much more easily for everybody. However, for now, I beg leave to withdraw the amendment.
Lord Lucas
Member’s explanatory statement
This amendment seeks to probe how school proprietors have knowledge of the information referenced in this paragraph.
Lord Lucas (Con)
My Lords, my Amendments 208, 216, 217, 220 and 225 seem eminently appropriate for discussing between today and September. Amendment 222 again raises the need for a tribunal to deal with tricky cases. We need something effective, we need something fair and open, and that is what tribunals are. I beg to move.
Lord Young of Cookham (Con)
My Lords, I will speak to Amendment 209 in my name and those of the noble Lords, Lord Russell, Lord Storey and Lord Watson.
Amendment 209 would require local authorities to ensure that they have offered a young carer’s needs assessment if they are notified of a pupil who is a young carer being withdrawn from school. This is to ensure that withdrawing a young carer from school does not result in increases in their caring responsibilities to the extent that it prejudices their education.
I am vice-chair of the All-Party Parliamentary Group on Young Carers, an active APPG producing reports on the challenges facing young carers and enabling parliamentarians to meet young carers, virtually and physically, to hear at first hand the challenges that confront them. A recent report told us of the difficulties that they face when their responsibilities as carers are not recognised by school and others, and that too many young carers cannot thereby access the support they need.
By way of background to this amendment, there are more than 15,000 children caring for parents or siblings for more than 50 hours a week. That is more than the average working week—and of course, they have to squeeze in their education on top of that. One issue that young carer services have shared with the APPG is that there are cases where a young carer is caring for a parent—for example, with a severe mental illness—and is withdrawn from school. Not being in school then results in greater responsibilities falling on those young shoulders, and in even more isolation from the support that a school can give them.
Lord Watson of Invergowrie (Lab)
My Lords, I am pleased to speak to Amendment 209 in the name of the noble Lord, Lord Young, to which I have added my name, and I thank him for introducing it so effectively. A young carer is defined as someone who is under the age of 18 and is looking after a family member or close friend. Often being forced to balance school and their social life with caring duties could seem an impossible task, which can take its toll on a young carer’s mental health. That said, on the other side of the coin, with the right level of support, many of the skills that they learn while caring are later transferable to adult life and the world of work.
All too often, however, young carers are invisible. If adults outside their family, particularly teachers and school support staff, are unaware of their caring responsibilities, it is unlikely that the help that they need will reach them, so it is important that we recognise young carers and learn how we can help them, because being a young carer is undoubtedly demanding. They assume adult responsibilities and worries while still a child and have to prepare for and get to school, study for exams and look after themselves.
During the pandemic, the Children’s Society launched the young carers count campaign, which highlighted the experiences of young carers and called for a child’s status as a carer to be included in the school census. The DfE acknowledged the value of that, because in 2022 it began to include young carers as a category in that census. Now that data is being recorded, a much clearer picture of the number of young carers across England and how they are impacted by their caring responsibilities is beginning to emerge. With proper resourcing, this should help significantly to improve the support that they receive.
The Children and Families Act 2014 amended the Children Act to make it easier for young carers to get an assessment of their needs and introduced whole-family approaches to assessment and support. Local authorities must offer an assessment where it “appears”—I am not quite sure what that means—that a child is involved in providing care. That legislation is aligned with similar provision in the Care Act 2014 that requires local authorities to consider the needs of young carers if, during the assessment of an adult with care needs, or of an adult carer, it appears that a child is providing or intends to provide care. In those circumstances, the authority must consider whether the care being provided by the child is excessive or inappropriate and how the child’s caring responsibilities affect their well-being, education and development.
Amendment 209 would add to Clause 30, which, of course, is concerned with children not in school. When a local authority is informed that a request has been made for a child to be removed from school, this amendment would require that a young carer’s needs assessment is undertaken. This would highlight cases where a child was being withdrawn to enable them to offer more support to a family member, likely at the expense of them attending school and thus continuing with their education. Increased caring responsibilities almost always mean that there is neither the time nor the facility for a child either to receive meaningful education from that relative or to self-educate, even where he or she was at least theoretically old enough to do so and the appropriate learning materials were made available. The starting point for any such assessment should always be that children are children first.
The young carer’s needs assessment must determine whether a young carer is giving what I described earlier as “excessive” care. Although a child might be undertaking relatively minor care tasks, the time that these take up and the demands that they make on the child could place significant limits on their life—for example, if the level of care interferes with school attendance or appears to be isolating the child in their home and preventing contact with their friends. For that reason, I hope that my noble friend will agree that a needs assessment is necessary to ensure that local authorities are aware of young carers’ needs and that their needs are being met, while preserving their access to education.
Lord Addington (LD)
My Lords, I will be brief. I can see why my noble friend Lord Storey added his name to the amendment tabled by the noble Lord, Lord Young. Any child taking on responsibilities like those described in that amendment is not having a childhood. In reality, they are getting through from day to day—they cannot be doing much more. School may be the only point where they will get some support and some normal life; enabling them to have that may be the only way that they can have a future.
If you spend your entire life looking after somebody else, and they inconveniently live for quite a long time, you could find yourself in middle age without an education or qualifications and having been de-social skilled—I do not know if that is a correct expression. Your life will have been taken over by another function. That should not be put on somebody that young. When she comes to respond, I hope that the Minister will say something positive, because this is something that we should deal with at the first opportunity.
Baroness Jones of Moulsecoomb (GP)
My Lords, I rise to speak to my Amendment 224, which I think is less contentious than the last issue that I raised in your Lordships’ House. The amendment is about deregistration from school when it is triggered by crises, or whatever. Taking your child to school is a voluntary arrangement at the point of enrolment, but parents get fined for unauthorised absence, even if they go into the sort of crisis that will eventually lead to them deregistering.
I do not know anything about education, despite being in education until I was 18, and then at university, but I have vested interest because three of my grandchildren were home-schooled. Two of them are now at Cambridge—one is doing history and the other politics—and the other one has made a comedy film about autism, which is a condition she has, and that is doing incredibly well. Those three children have been home-schooled and have reached a level that many children do not get to regardless, so I would argue that home-schooling can work extremely well. It is important to remember that, for some children, it is the answer. We want to avoid government overreach in these situations.
It seems obvious to me that, where a parent clearly no longer consents to the education arrangement with the school, it makes sense that they do not get fined. The fines do not get the children back to school, but they do add financial worries to the sense of stress. I understand why the Government reach for deterrence in order to give children the best education that they can, but sometimes school is not the right answer and I ask the Minister to consider whether financial penalties are useful in all these situations.
Lord Wei (Con)
My Lords I rise to speak to my Amendments 218, 223, 381, 403 and 418. Together, they seek to introduce fairness, balance and accountability into the Bill and to support families who are simply choosing a lawful, legitimate path of home education.
I will first focus on Amendment 218, which will require any local authority officer making decisions about elective home education to have at least two years’ personal experience of home educating their own children. This is not an ideological proposal but a practical one. I recall being asked once by the noble Lord, Lord Adonis, to help create a Teach First programme for social workers. I declined, not because I doubted the value of new graduates but because lived experience matters. Pattern recognition, nuance and trust are not easily taught, especially if you have only recently graduated. You cannot understand the reality of raising and educating a child outside school unless you have walked that path yourself.
To ask someone with no such experience to judge a family’s educational approach is like asking a man to speak with authority on childbirth or someone without children to dictate how others should raise theirs. According to Education Otherwise, home-educated children are twice as likely to be referred to children’s social services as their schooled peers, and yet no more likely to be placed on a child protection plan. This points to systematic overreferral, driven in part by ignorance and in part by a narrative that wrongly associates home education with safeguarding risk. This amendment offers one step towards correcting that imbalance.
Case law supports this. In R (T) v Chief Constable of Greater Manchester 2014, the Supreme Court held that administrative decisions that infringe individual rights must be informed by proper context and not rely on rigid or generic assumptions. Without understanding the diversity and nuance of home education, decisions risk being fundamentally flawed. If flawed decisions are made persistently, structurally and without oversight, judicial review becomes not just possible but likely. My concern is that the Bill, without this amendment and others like it, will open floodgates to such challenges, and perhaps rightly so.
This brings me to Amendment 223, which would establish an independent home education ombudsman—somewhat similar to the tribunal idea but very focused—to receive and investigate complaints against local authorities that overstep in the course of carrying out their duties under the Education Act. This is frankly overdue. At present, if a parent believes that they have been mistreated, there is no meaningful avenue of redress: no independent appeal, no clear complaints process and no statutory body to oversee how these immense powers are exercised. All they can do, as we have discussed, is write to the Minister, who to our knowledge has never, or rarely, upheld a complaint by a parent in this or a similar context.
I will give noble Lords some testimonies to bring this to life here. We have talked about the legal process here, but I want to bring home how human lives are affected by what we are proposing and what already takes place. One mother, a non-UK national, withdrew her child from the UK system before school age, having mistakenly registered with the local authority on school advice. Despite their lawful departure, the LA demanded boarding passes, proof of address and school details abroad. The child was never of school age in the UK. This was not protection; it was pursuit.
A military family has described how their local authority contacted the husband’s workplace repeatedly to discuss the children, even after it had ruled that the home education was of a satisfactory, suitable level. It then had to make an apology and had clear instruction to contact only the mother. The mother said this was a huge breach of privacy because of the nature of the agreement they had established. A home-educating doctor wrote:
“After de-registering my daughter with SEND, I was referred to social services again. My son and I were followed in public. I feared for our safety. My daughter began to regress. I had done nothing wrong—just removed her from a school that failed her”.
Lord Crisp (CB)
My Lords, I support Amendment 209 in the name of the noble Lord, Lord Young of Cookham, and others, in part for the reasons given so eloquently by the supporters of the amendment, but also because it provides the opportunity for the child concerned to be home-educated if that is the right thing for them. It is not just about ensuring that being home-educated is in the child’s best interest, but about providing the opportunity for that to happen. This is an important, and presumably relatively small, concession in terms of numbers, because here we are talking only about people who are in special schools, although I know there is another amendment later. I hope that the Minister will consider this amendment favourably.
Lord Lucas (Con)
My Lords, I very much support what my noble friend said about young carers. We ought to be much better at collecting information on what is going on with young carers. The whole business of collecting information is getting easier with AI. The government AI team is a sight to be seen. I have not, in government, come across such an enthusiastic and effective team. I very much hope that the Department for Education will make contact and make use of the blockers. When you are faced with a difficult problem and need to find a way of collecting data that does not put a burden on the organisations that are having to do that data collection, and it is diverse and complicated, AI is a really good approach. I urge the Government to help look after young carers by taking that step.
Baroness Barran (Con)
My Lords, there is a large number of probing amendments in this group and, in the interests of making progress, I will not comment on most of them. I am very sympathetic to the intent behind Amendment 209 in the name of my noble friend Lord Young of Cookham. I would hope very much that a child who is a young carer would be supported to stay in school, given the obvious risk that their education would suffer and conflict with the care needs of their parent if at home, but I have no further comments on the other amendments in this group.
Baroness Smith of Malvern (Lab)
My Lords, I shall speak to the amendments in group 5. These amendments mainly concern the requirement to seek consent should a parent wish to withdraw their child from school in particular circumstances. Just to reiterate, we recognise that most home-educating families provide safe and suitable education in the best interests of their children. The consent measure applies only to specific groups of children—where there are child protection concerns or the child has a special school placement. We are confident that this is a proportionate response to help to ensure that these children’s needs are met and are protected.
With respect to the detail in the amendments, I turn first to Amendment 208, tabled by the noble Lord, Lord Lucas, which would remove the requirement for a school to notify the local authority responsible for the child if that is different from the local authority where the school is located when a parent intends to withdraw the child to home educate. To be clear, schools will hold the child’s address; therefore, they will know which local authorities to notify. Working Together to Safeguard Children, the statutory safeguarding guidance, is clear that schools should be included in child protection activity and planning, and therefore should also be aware of which local authorities should be contacted. It is crucial that schools retain the responsibility to verify whether consent is needed for home education. Without this, children in scope of the consent process could be mistakenly removed from school rolls without permission, or the consent decision could be delayed.
Turning to Amendment 209, tabled by the noble Lord, Lord Young, which has rightly received the most attention in this group of amendments and would require a carer’s needs assessment before the child is withdrawn from school, I commend the noble Lord on championing the needs of young carers. To be clear, I certainly do not demur from his overarching argument—and that of other noble Lords, such as my noble friend Lord Watson—that young carers are in need of specific attention, care and consideration from local authorities because of the enormously difficult position they find themselves in.
The local authority will have ample opportunity to fully consider the child’s circumstances as part of the consent decision-making process. In fact, that is the whole point of having that process. Of course, under Section 436C(2), which we touched on in, I think, the group before last, local authorities will also be able—be expected, in fact, I would suggest—in the case where a child is a young carer and is being educated at home, to record and keep relevant information about that child. If they were being home educated, the fact that they were a carer would be an important part of the information that a local authority should record about them, precisely in order to make sure that they are getting the support that they need.
The Children Act 1989 already provides robust safeguarding measures for young carers, who may be recognised as children in need, ensuring that their support needs are assessed by their local authority. Of course, we will ensure that our reforms to both education and children’s social care work for all disadvantaged children and young people, including young carers.
I think it was interesting that some people, in responding to this amendment, were arguing that being a young carer should not be a reason why a child could not be home educated, and others were arguing that it would be better for that child to remain in school, with support, and be able to learn without the relentless role, as I am sure it is, of being a carer. I think this suggests that there are probably differing circumstances for young carers, and it reinforces the general point that local authorities should take seriously their responsibilities to fully consider the needs of young carers and to ensure that their support needs are being assessed.
Turning to Amendments 216 and 217—
Lord Young of Cookham (Con)
Before the noble Baroness leaves Amendment 209, will she say something, or perhaps write to me, about the delay in getting a needs assessment for young carers?
Baroness Smith of Malvern (Lab)
Sorry, yes, I remember that the noble Lord asked about that. I will write to him on the broader issue of the speed with which young carers are getting their assessments. I will follow that up separately.
Amendments 216 and 217, tabled by the noble Lord, Lord Lucas, seek to remove or amend the requirement for local authorities to notify any other parent of the child of their home education consent decision. In law, all parents have responsibility for their child’s education, and it is therefore necessary that all parents are notified, unless there are exceptional circumstances. Amendment 216 would remove this. Including exceptional circumstances provides safeguards where a parent does not have to be notified: for example, in cases of domestic abuse. Of course, children must be protected from domestic abuse. Amendment 217, however, states that
“exceptional circumstances will always apply where domestic abuse is alleged or established”.
We are concerned that this could have unintended consequences, including a parent making an accusation of domestic abuse to prevent the other being informed of the consent decision. Again, sadly, local authorities are quite used to the way they need to behave and the care they need to take in circumstances of allegations of domestic abuse. However, we will provide further detail regarding what “exceptional circumstances” means in this context in statutory guidance. As I have said previously, we will engage with stakeholders when updating that guidance.
I turn to Amendments 218 and 381 tabled by the noble Lord, Lord Wei. Amendment 218 would require local authority staff to have at least two years of personal home education experience of their own children before making consent decisions. Amendment 381 would require at least one person with direct home education experience on safeguarding panels for decisions related to home-educated children. I think it is possible to be an experienced practitioner without specific lived experience; however, that can make a good, important and interesting contribution. I am not sure that the noble Lord’s experience about men not being able to work with women giving birth would be recognised by the large number of male obstetricians operating around the country, but that just proves that, while lived experience and, most certainly—
Lord Wei (Con)
To clarify, I was in no way saying that men could not work with women in childbirth. I was trying to make a point about speaking as authoritatively on the process of giving birth as a man as if you were a woman. In no way would I want the Minister to interpret me as saying that one could not be a male midwife or anything like that, but, as some of us know, when in certain circles I have talked about something feeling like childbirth, I have quite rightly been told off, because I have never given birth. There is something about that lived experience that I am pointing to. I am not making the point that people cannot work in certain professional settings in that sense.
We are crossing over from professional expertise into lived experience, saying that a parent can or cannot raise their child and parent-educate. Even if you were to use the professional argument, I am not sure that having that determined by someone who may not have that experience—when, right now, even the professional in this context is not trained in the philosophies and the different nuances of home education—is quite right in this context.
Baroness Smith of Malvern (Lab)
I certainly think it is right that we should attempt to ensure that people with lived experience are a key part of all areas of policy. That is why, for example, I talked earlier about the home educators’ forum that the department has brought together to help to inform our work here and the guidance. The point that the noble Lord was making went well beyond that. The suggestion that you could not make a professional social work or education decision in this area unless you had lived experience would make this area wholly different from any other area that professionals were making decisions about, and that is the stumbling block for this amendment.
We have a workforce of trained, dedicated practitioners who understand and champion the needs of the children they work with across schools and children’s social care. These amendments, in effect, would exclude around 99% of the population and, of course, would assume that one professional’s experience of home education is reflective of all parents. Working Together guidance is clear which practitioners should be involved in safeguarding decision-making and the importance of including children and families in that as well. We are confident that the Bill measures, and wider children’s social care reform that strengthens the protection of children, will mean that local authorities can draw on a range of expertise when making decisions—and so they should.
Amendment 220 tabled by the noble Lord, Lord Lucas, and Amendment 224 tabled by the noble Baroness, Lady Jones, would allow a child not to attend school prior to receiving consent from the local authority. I say to the noble Baroness, Lady Jones, who was not here for the earlier parts of the debate—for which I do not condemn her—that the points she made about the very successful home education experience of the children she was talking about who are close to her has very much been reflected in the comments that other noble Lords made earlier. We are clear that there are many children for whom home education has been a very fulfilling and successful process, and there is nothing in this legislation that removes, for example, the right of parents to make that decision to educate their children at home.
With these consent provisions, however—and in wanting to ensure that if a child is being educated at home, they are at least seen and understood to be being educated elsewhere than in school—we want to make sure that every child is seen. That is the expression that we were using earlier, and that is what we are aiming to do here. Also with respect to the consent provisions, we are concerned about those children for whom there might be particular reasons for a local authority to look carefully at the decision to grant consent by virtue of them being subject to a Section 47 inquiry, under a child protection plan or requiring the specific facilities of a special school.
For many children, a school is a protective environment and a means of offering essential support. I know that the noble Lord and the noble Baroness share our desire to reduce the risk of children falling through gaps and potentially going missing. It is therefore important that a child continues to attend school until a local authority has determined the consent request. Removing a child before this could subject them to unsuitable education or increase the risk of harm. I am sure that the noble Baroness could envisage a situation where, for legitimate reasons, a Section 47 inquiry is instituted where there are concerns about a child being at risk of very significant harm and—I am afraid that we have seen examples of this—a parent, thinking that this would be a way of avoiding it, decides at that point that they want to remove their child from school. In those circumstances, I do not think that any of us would want that child to be removed from what may well be the protective environment of a school before the decision had been made about consent.
For all children who are not subject to the consent process, which will be the vast majority of children whose parents want to home-educate them, all we are expecting is that the parent notifies the school that they want to remove their child from the roll and that the school has the opportunity to check, therefore, whether they fall within the criteria of a child for whom consent would be necessary or whether they are subject to a school attendance order. It would not be unreasonable to expect a child to carry on attending school while that relatively straightforward administrative check was made.
Amendment 222, also tabled by the noble Lord, Lord Lucas, would require consent decisions to be revisited sooner than six months after the previous request when new evidence becomes available or the child has been disadvantaged by the decision. This six-month timeframe is proportionate and is provided to reduce multiple requests regarding the same child. There will be situations where it may be appropriate for the local authority to consider applications sooner—for example, if there has been a substantial change in the child’s circumstances. A local authority can do this under the clause as drafted, if it so wishes. I am sure that the noble Lord could also envisage a situation where a parent who was unhappy about the consent decision made by a local authority expected the decision to be revisited perhaps every week. That is the reason for setting this timeframe.
Amendment 223 tabled by the noble Lord, Lord Wei, is about establishing an independent ombudsman. I understand the theme that is developing here about independent review capacity. Notwithstanding that, the Government do not believe that it is necessary. I note that the noble Lord, Lord Lucas, uses almost every opportunity to push his tribunal suggestion. I am interested in whether the proposition now is that we should have both a tribunal and an ombudsman in these cases. Of course it is right that there should be a process for referring local authority decisions that parents are not satisfied with; however, it should be uncomplicated. It is right that the final decision should rest with the Secretary of State, or Welsh Ministers, who will fully and objectively consider the merits of the case.
Amendment 225, tabled by the noble Lord, Lord Lucas, would remove the definition of the “relevant local authority” that is responsible for making a home education consent decision. For children subject to a child protection inquiry or plan, the local authority where a child lives is responsible for making the consent decision. They will have the information needed to make informed decisions and should therefore determine consent. For children in special schools, who are not also subject to child protection processes, consent is needed from the local authority that maintains the plan, just as is the case under existing legislation. This new subsection provides legal clarity for parents, schools and local authorities.
Amendment 403, tabled by the noble Lord, Lord Wei, requests emergency court hearings for parents where a local authority seeks to remove, or removes, a child from their parents due to concerns arising from home education. To reiterate, the Children Act 1989 is clear that the threshold for care proceedings is significant harm. Home education as a singular factor would not reach the threshold for care proceedings. Child protection concerns about a home-educated child must be addressed through the same process as any other child facing harm. This includes parents’ rights to challenge decisions about the removal of a child into care.
Finally, Amendment 418, tabled by the noble Lord, Lord Wei, would require local authorities to refer individuals who file false or malicious allegations against home-educating parents, who then may be subject to civil penalties. There is a concern that this could deter valid concerns about home-educated children being reported, potentially leaving children at risk. Local authorities have robust processes in place to identify whether a child is suffering, or likely to suffer, harm and appropriately respond to malicious allegations, regardless of a child’s educational status.
I said earlier that it would not only be in the case of home-educated children that a local authority might have to make a decision about whether a complaint about a child’s parents was well founded or malicious. Home-educating parents have the same rights as other parents. Families can seek support from the local authority or police advice if intentional false reports are being made against them.
For the reasons I have outlined, I hope that noble Lords will feel able not to press their amendments.
Lord Lucas (Con)
I am grateful for the Minister’s extensive responses to the amendments. She is right that I will keep coming back about tribunals. I am not attached to any particular form—a tribunal, an ombudsman or what the Government propose. My concern is that it should be effective, and my experience of the Secretary of State route has been that it is not. I am very happy to take the opportunity of the gap between now and 1 September to learn more about the Government’s proposals as to how the Secretary of State route should work, and it may be that I will come to love it as much as she does—that would be nice.
On Amendment 208, knowing a child’s address is not the same as knowing their local authority. There is nothing in the address that says what the local authority is; you need to have a lookup. Local education authorities are not necessarily coterminous with what we think, so the Government would have to provide a lookup. Also, in circumstances where children are in joint custody, the question of their address can be complicated and moot. In both circumstances, there needs to be some help from the Government to enable a school to be sure that, in all circumstances, it determines the right local authority with responsibility. I beg leave to withdraw the amendment.
Lord Lucas
Member’s explanatory statement
This amendment seeks to restore the current relationship between state and parents with regard to education.
Lord Lucas (Con)
My Lords, Amendment 211 goes to a much deeper part of this Bill: the assertion in lines 39 and 40 on page 51 that those in a local authority are the right people to determine what is in the best interests of a child. For the past 150 years it has been accepted that it is the parents who are the first people to determine what the best interests of a child are, so this is a fundamental change in education legislation, which may run out into all other aspects of the relationship between parents and children. If the local authority is the best judge in this space, why is it not also the best judge of which school a child should attend, or many other aspects of the child’s educational journey—what exams they should take or which university they should go to? Why is the local authority’s judgment being inserted here against all precedent?
Who in the local authority is making this judgment? Local authorities used to be staffed with a big school improvement department and lots of people who knew their way around education. They are much thinner now. How on earth is a local authority staffed to take this decision? Is it guaranteed to have the expertise? Will there be a special cadre of people capable of taking this sort of decision, and trained and experienced in it?
I find it very hard to understand why the Government wish to take this role away from parents. It is a big, fundamental change and something that gives me great cause for concern. Again, it brings me back, as the Minister will expect, to the idea that, if we are to have something like this, there has to be an effective right of appeal to someone who has access to a much wider and deeper pool of information and judgment.
My other amendment would mean that, if a local authority is making the judgment, it must make it as a real judgment—how the school they are thinking of placing the child in actually does for children like the child concerned. It must be a careful, individual judgment, and not a judgment in principle from someone in a local authority who believes that, in almost every circumstance, education in school is better than home education. There are people in local authorities like that.
I find these two lines in the Bill really disturbing and I hope the Government will reconsider them. I beg to move.
The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con)
My Lords, if Amendment 211 is agreed to, I will be unable to call Amendment 215 by reason of pre-emption.
Lord Crisp (CB)
My Lords, I will speak to Amendment 211A, which is in my name. I very much agree with the comments made by the noble Lord, Lord Lucas. This is one of the biggest issues in the Bill. Why the words
“in the child’s best interests”
have appeared here and not elsewhere seems strange. They seem slightly out of place.
It may be that it is late in the evening, and I am going slightly brain-dead, but it seems that what is written in the Bill is internally contradictory. It says that the local authority
“must refuse consent if the local authority considers …that it would be in the child’s best interests to receive education by regular attendance at school, or”—
going back to my education, I assume this is the law of excluded middle—
“that no suitable arrangements have been made for the education of the child otherwise than at school”.
If it is alternatives, then presumably new Section 434A(6)(b)(i) means that there are cases when suitable arrangements have been made for the education of the child otherwise than in school, but it would be in the child’s best interests to receive education by regular attendance at school. Unless I have that completely wrong, it seems that this is something of a muddle anyway in the presentation of this account.
The bigger point, rather than simply that, is the one the noble Lord makes about who decides what is in the best interests and what we mean by it. I have suggested in my amendment to leave out
“that it would be in the child’s best interests to receive education by regular attendance at school”
and replace it with the actions mentioned further up the page in new subsection (4)(a) where the inquiries
“have led the local authority to conclude that the child is suffering, or is likely to suffer, significant harm (within the meaning of section 31(9) and (10) of—”
the Children Act 1989.
In other words, keep this about abuse and about child protection, and do not introduce the wider consideration of
“in the child’s best interest”,
whatever that means, as well as, as I said, the logical inconsistency of the framing that is down on paper.
Lord Frost (Con)
My Lords, I have similar doubts and concerns about Amendment 211—or rather the problem it is designed to deal with—to my noble friend Lord Lucas. To elaborate, the principle that parents have the primary responsibility to provide education for children has been in statutes of various forms for the best part of 150 years and is currently in Section 7 of the 1996 Act. There is a qualification to that, for reasons of cost and efficiency, but no qualification for anything else. My noble friend Lord Lucas is right to say that this is the first time we have seen this very important principle qualified. The fact that it is done almost in passing and, as the noble Lord, Lord Crisp, said, in a bit of a muddle, makes one wonder how much thought has been given to this, and whether indeed the intention is to go back on this very long-standing principle or not. It does not seem to have been very clearly thought through.
At the moment, we have a provision that says that local authorities “must refuse consent” to the subset of children who are caught by these new provisions if they think that home education is not in the best interests of those children. That is most egregious for children in special educational schools but also for the Section 47 part of the definition, which, as we have been discussing, potentially has quite a low threshold.
My questions to the Minister are these. Is it intended with this provision to overturn that very long-standing principle? If it is not, can she explain why it is not and why this draft does not do that? Is it worth thinking a bit harder about the drafting of this section and, as the noble Lord, Lord Crisp, said, substituting some sort of objective positive test rather than this very broad and novel “best interests” test?
Lord Wei (Con)
My Lords, I will speak to Amendment 212 and the related amendment to Clause 30. Taken together, these amendments aim to restore vital balance and proportion to the question of whether a parent may withdraw their child from school. They would place evidence, not mere suspicion, at the heart of decisions to profoundly shape children’s lives, reaffirming that it is parents who are the primary guardians of their child’s welfare, unless proven otherwise.
As others have mentioned, Amendment 212 addresses the critical flaw in the Bill: trapping children in harmful environments by allowing local authorities to withhold consent for withdrawal without first producing clear, documented evidence of a standard sufficient to satisfy courts that such a withdrawal would cause greater harm. This is not some radical departure; it simply restates the core principle of the Children Act 1989 that the welfare of the child and the authority of the parents to act in their child’s best interest must be paramount.
From the groups that we have discussed so far, one of the concerns I have is that although we must recognise the sterling efforts of local authority officials, the department and the Minister, we must not always presume that in every case the state knows best. Mistakes are made, and from what I have heard so far I am worried that there is no real consciousness that there could be mistakes that would warrant either a tribunal or an ombudsman, and, in this case, no recognition that schools can potentially be a cause of harm as well—for example, if children are being groomed or exploited at school. Why is there this presumption that the parent must prove to the official that the alternative to school that they are about to provide will be safer, when in some cases they may be trying to get their child out of a harmful environment—for example, that particular school?
This is a real issue. Scandals we have had in the past. Horizon, and even Rotherham—if I dare to mention that in this place—were based on the assumption that the state clearly understands what is going on and is not making any mistakes, that nobody is overlooking anything, and that the state is wise and therefore everything it does is right and cannot be challenged, except when we find out years later that there have been mistakes and problems. The amendments that many of us are proposing are trying—certainly I am with this one and others—to address that assumption and create some safeguards.
The related, equally essential amendment to Clause 30 rightly distinguishes between the mere existence of a Section 47 investigation and its actual outcome. It seeks to ensure that local authorities may refuse consent only if their inquiries under Section 47 have led them to conclude that the child is suffering or likely to suffer significant harm.
I want to echo similar points made by others in this group that there is a real troubling shift towards the state deciding what is in the best interest of the child, based not on neglect or the criteria that we have relied on in the past for state intervention but on deciding what is in the best interest of the child educationally and holistically. How can this possibly be justified?
Even with Section 47, we are talking about suspicion as the threshold, so we may have this running debate which we may need to resolve when we sit down with officials. I have documented proof—real testimony—of officials who are suspicious, not recognising that there is harm being done in school to a child, of parents who want to home-educate. They say that the parents are going to harm the child, using cases such as the Sharif case and others to justify this intervention. This has caused officials to behave in ways that put them in a position of extreme power, without any protections or appeals.
The state should override parental rights only when there is evidence of significant harm, not because the state believes that it has a better view of what is in the best interest of the child over the parent. In re B (A Child) 2009, the Supreme Court was unequivocal. As Lord Kerr memorably put it, the state does not become the parent. It is justified in interfering only where a child is suffering, or is likely to suffer, significant harm. That is the litmus test.
For many families this is not theoretical; it is painfully real. I have been sent countless accounts, too often dismissed as anecdotal, of children enduring conditions in school that no safeguarding regime should tolerate. The 2021 Ofsted review on sexual harassment found that many girls routinely experience peer sexual abuse in school. The Women and Equalities Committee has documented similar risks. Children with autism, sensory processing difficulties and anxiety disorders frequently find the mainstream classroom overwhelming, not through any failing by parents but through systemic failure.
One mother recounted that her autistic child’s school-triggered anxiety caused seizures three to four times a week, which dropped to once every six months after she was withdrawn. Another spoke of her son vomiting every morning, paralysed by dread. Yet another mother described home education as not a lifestyle choice but “a safety net that saved my child’s life”. A 2023 study in the British Medical Journal found that adolescent mental health measurably improves during school holidays and worsens during school term time. This is not mere coincidence but evidence that for some children, school environments simply do not work.
Lord Addington (LD)
My Lords, the idea that the best interests of the child would be judged by the state is one that is reasonable under certain circumstances. It comes back to a point made by the noble Lord, Lord Lucas. Does it have enough resources to do this? Does it have the structure? If the Minister could tell us, now or in a letter, what criteria, what resources, will be put forward, everybody would be a little bit more comfortable with what is happening here. But I am afraid that the fact of the matter on special educational needs is that it is the parent who often struggles to get the help they need. We all know why—we have all been through the system and we understand it—I just want to know the process by which we get there. If we get one that sounds reasonable, I am happier.
Baroness Barran (Con)
My Lords, my noble friends and the noble Lord, Lord Crisp, have made a powerful case for the point of principle that underpins this group of amendments. I confess to agreeing with them only in part. The point of the noble Lord, Lord Crisp, that there may be a muddle in the drafting, may be a fair one because of the discussion we had earlier on my Amendment 204 about the automatic inclusion of children in special schools within the framework of local authority consent. So I am sympathetic to the points my noble friends and the noble Lord, Lord Crisp, make on children in special schools and the idea that the state knows what is best for them.
Where I am not sympathetic—I respect their opinion and I think they have a point—it is because, on balance, when a child is subject to a child protection plan or a child protection investigation, we have already established that it is either confirmed that the child is at risk of significant harm or there are serious concerns that the child could be at risk of serious harm. Whether the “best interest” is the best way of framing it, I do not know, but I think that at that point and for that group of children—
Lord Crisp (CB)
The amendment I have proposed uses almost the same words as those the noble Baroness has just used: rather than using the phrase “in the child’s best interest”, why not refer to being at risk, and abuse, as found by the tribunal? It seems much clearer to do it that way, and I wonder whether she would agree.
Baroness Barran (Con)
The noble Lord is right and I am grateful to him for again drawing my attention and that of the Committee to his drafting. I guess one would then need to consider the group of children in special schools, because I would be surprised if the noble Lord’s drafting applied to so many of them.
Baroness Smith of Malvern (Lab)
At the heart of this group of amendments is the concern about the use and definition of the expression “best interest of the child”.
The noble Lord, Lord Lucas, and others suggested that the use of the “best interests” ground in Clause 30 is a fundamental change to parents’ rights. I reiterate the quite narrow scope of the use of “best interests” in this clause. Remember that what we are dealing with here is not the fundamental decision about whether a parent has the right to remove their child from a school to educate them at home. They have that right, unless some very specific circumstances are met—when they may still have the right, but we introduce a process for the local authority to consent to whether it is appropriate for that to happen. I do not think I need to run through once again that narrow category of children and circumstances where, as we are proposing here, the local authority should be enabled at least to consider the issue of whether, in those circumstances, it is appropriate for the child to be removed from school.
I know that some noble Lords do not believe that there should be any need for consent and therefore do not believe that the criteria that the Government have chosen of Section 47 inquiries, child protection plans or special schools are appropriate. I accept that but, if you do have a consent system—and there is quite a lot of support for the idea that an additional stage is appropriate for children in these circumstances—you then need to decide the criteria for the local authority’s decision-making. New subsection (6)(b) makes it clear what those criteria should be in these very specific circumstances.
It does not feel unreasonable to me that those criteria should be what the local authority believes to be the best interests of the child. We can assume that the parents believe in the best interests of their child, but in these very specific circumstances, because of the nature of the children, we think the child’s rights might override the view of their parents.
So the first criterion is what is in the child’s best interests; the second is whether or not there are suitable arrangements made for the child to receive education, other than at school. I understand that some noble Lords do not believe that those are the right criteria, but I do not agree with the noble Lord, Lord Lucas, that this is somehow a fundamental change in the rights of parents. We recognise that most parents have their children’s best interests at heart and tirelessly advocate for them, often in difficult circumstances. That should be the basis on which parents are able to make decisions, in most circumstances, about whether or not their children are removed from school to be educated otherwise.
However, there are situations where a child could receive a suitable education at home but it is not in their best interests to do so—for example, if there are concerns that the child is being exposed to domestic abuse or extremism. In those cases, the school can act as a protective factor that enables issues to be escalated quickly.
I hope that my argument about the reason for the choice of those criteria also covers the points made by the noble Lord, Lord Crisp. He recommends that a local authority should automatically refuse consent for any child where the local authority has concluded that they are suffering or likely to suffer significant harm following a child protection inquiry, but child protection is complex and practitioners must gather a range of information and evidence from multiagency partners and others who work with the child and their family, and children can experience harm from both inside and outside the home. Therefore, it would not be appropriate to prohibit all such children from being removed from school for home education.
The consent measure rightly requires the local authority to consider the individual circumstances of each child. It is probably worth reminding ourselves that the consent measure is not preventing parents in these circumstances from home-educating; it is simply saying that the local authority should consider whether that is appropriate and use the two criteria that have been set out in the Bill.
Amendment 212, tabled by the noble Lord, Lord Wei—
Lord Crisp (CB)
I think I understand the Minister’s points, but could I just pick up the slightly pedantic point that I was making? If it is an “or”, it implies that suitable arrangements could be made for the education of the child otherwise than at school and that the local authority still considers that it would be in the child’s best interest to receive education by regular attendance at school. It is a slightly pedantic point and I am very happy to just register it rather than require an answer. As I say, I think it is the law of the excluded middle.
Baroness Smith of Malvern (Lab)
I understand the noble Lord’s point. If I am wrong on this then I will clarify afterwards, but you could envisage a situation where the problem was not the nature of the education being provided but whether, given the circumstances that the child found themselves in, it was in their best interests not to be in a school. The protective element of being in a school could be the most important point there.
Lord Wei (Con)
To build on that, if you had a local authority officer with not much experience of home education—given that that is apparently not available—who is shown suitable education arrangements by the parent planning to take their child into home education, then that first new sub-paragraph could allow them still to override those arrangements, which they have agreed are suitable, by saying that they think it would be best if the child attended a school. How do we deal with that precise situation which she has said could happen? Do we not need to work this out so that our wonderful local authority officials are not confused when reading this guidance and say, “Well, I can still override the parents because I think it is right that they stay in school, because that is in their best interests”?
Baroness Smith of Malvern (Lab)
That is what I was saying. You could envisage circumstances in which there is a child on a child protection plan, notwithstanding that there might be suitable education, where the protective role of being in school would be in that child’s best interests and being away from the school might be against them, regardless of what the other education provision might be. Let us not forget that this would be a consideration only for children for whom there are child protection concerns or for children in special schools, where, to be fair, it would more likely be about the appropriateness of the education, but could be about the other support available for a child that would not be available in other circumstances, notwithstanding the question of education, because of their needs that required them to be put into the special school in the first place.
Lord Wei (Con)
I can fully appreciate that, given the scope here, if there was a safeguarding concern then one might want to pursue the route the Minister is talking about as the officer in question is trying to make that decision. However, the way that this is worded, even if the parents or family subject to Section 47 have found a way to provide suitable education, gives the officer the room to say, “I am concerned about the safety of the child”, when it is more that they do not like the education being provided.
Baroness Barran (Con)
I think I might speak for others in the Committee in saying that this level of detail could be better dealt with face to face with officials, which would allow us to do another group before the House rises.
Baroness Smith of Malvern (Lab)
Amendment 212, tabled by the noble Lord, Lord Wei, seeks to raise the threshold for the local authority to refuse consent to home-educate. This would mean that, if a parent was concerned that their child was being harmed by attending their current school, the local authority would be unable to refuse consent unless it provided evidence of a standard sufficient to satisfy a court that withdrawal would result in greater harm.
Let me be clear that parents’ concerns regarding bullying or their child’s mental health are serious, and these issues should be discussed with the school and local authority. I can quite understand why parents might want to remove their child from school in those circumstances.
However, it is important to remember that the requirement for local authorities to consent to home education relates to a specific set of children who are subject to a child protection plan or inquiry or who are in a special school. This measure is intended to ensure that the local authority takes a considered, proportionate and informed decision for these groups. Eligible children should not be withdrawn from school for home education if it is not in their best interests or if education outside school is not going to be suitable. I want to be clear that local authorities must evidence their decision-making, but requiring it to the degree that the amendment suggests is totally impractical. Local authorities are well placed to make this best interests and suitability judgment. They possess the required information and have access to multi-agency expertise as part of their child protection and education duties, and parents’ views will be taken into account by local authorities as part of their decision-making process.
Amendment 215, tabled by the noble Lord, Lord Lucas, seeks to ensure that a refusal to grant consent to home-educate is taken against the background of the characteristics of the school that the child might attend. Just to be clear, the consent process is not intended to keep children in a specific school or to keep children in a school that is not right for them. Parents remain free to remove their child from one school to attend a different school that they believe can better support their child’s needs, for example. I hope that assures the noble Lord that there is no intention that a child could or should be forced to remain in a specific school, so the need to compare different schools is unnecessary. I hope noble Lords feel that I have provided sufficient assurance and that the noble Lord, Lord Lucas, will withdraw his amendment.
Lord Lucas (Con)
My Lords, I thank the Minister for her reply. Yes, I would very much like to pursue some of the details of this in meetings. The practicalities of what she described do not coincide with my experience of trying to get children moved from one school to another, particularly special schools. I do not see how it works. She described local authorities as fountainheads of expertise in this area. That is not my experience. It used to be, but not now. These are areas in which I really want to understand more about the Government’s reasoning and how they are approaching things.
There is a deep principle here. It is only a small footprint on the first bit of beach, but the direction is clear. If it applies to children with SEN, why does it not apply to everybody? If the local authority’s judgment is better for those children, why is it not better for everybody? If the local authority’s judgment is best for children who are being taken out of school, why is it not best for children who never go into school? There is no edge here. Once this direction has been taken, it will carry on, and we must question it hard at its first instance and not shy away from that just because it is small. But for now I beg leave to withdraw the amendment.
Lord Wei
“(6A) A child is not required to be registered under this section if the parent provides evidence that any one of the following conditions is met—(a) a competent home educator with at least five years of personal or professional experience has provided a sworn affidavit affirming that, in their judgment, the parent will be capable of providing a suitable education consistent with their educational philosophy,(b) the parent has arranged and paid for the child to sit at least three externally assessed national qualifications, including but not limited to GCSEs, A-Levels, or accredited vocational awards, or(c) the child is enrolled with a national online school or flexible provision provider known to support home-educated or otherwise educated children to a suitable standard.”Member’s explanatory statement
This amendment and another in the name of Lord Wei exempt families from registration and data submission requirements where they can show credible evidence of suitable education through endorsement by an experienced educator, formal qualification entry, or enrolment in a recognised online provider.
Lord Wei (Con)
My Lords, I will speak to Amendments 230, 254, 323 to 326 and 423, all of which stand in my name. The creation of a register, though flawed, is fundamentally intended to identify children and families who have yet to demonstrate they are providing a suitable education through home education or otherwise. It stands to reason, therefore, that those who have already demonstrated this suitability or who have mitigating circumstances preventing them doing so at this time, such as being in crisis, seeking asylum, holding diplomatic status or navigating a legitimate and complex personal or family situation, should not be treated identically to those where safeguarding concerns may genuinely arise.
There ought to be legitimate exemptions. These amendments start to aim to highlight such families, to give space to children who can show for themselves or through others that they are receiving a suitable education and that their parents are competent, committed and responsible, free from unnecessary state interference. These amendments deal with a wide range of contexts, but they all converge on a single point: not every child outside school is invisible, unsafe or neglected. Many are thriving, and the law must recognise that.
Amendment 230 is central to this group. It proposes that where credible evidence of suitable education already exists, families should not be compelled to register with the local authority. This could be demonstrated, according to the amendment, in three ways: first, through an affidavit from an experienced home educator, perhaps one who has seen their own children succeed in life and academically; secondly, through enrolment and payment for formal qualifications, such as GCSEs, for which I think the going rate is currently several hundred pounds; or, thirdly, through enrolment with an established online provider. It should be noted that the fastest-growing sector within education in the country is online virtual schooling. Indeed, the Government have their own Oak National Academy. These are not mere technicalities. They are serious, objective indicators that a child’s education is suitable. For those not taking home education seriously, they could be a suitable deterrent as well.
The state routinely accepts this kind of evidentiary substitution. The DVLA accepts a GP’s opinion for driving fitness. The Home Office accepts identity attestation from religious leaders. I think it is all digital now, but many of us have had our passport photos signed, and I think you still can get them signed, by a vicar or someone else of standing in the community. The courts accept third-party expert testimony in mental health cases. In GDPR, controllers are not required to collect identifying data if it is not needed. Why should education be the one domain where all such trust is withdrawn?
Case law supports this principle. In R v Secretary of State for Education ex parte Talmud Torah, the court affirmed that where parents choose an alternative but suitable method of education, the state must respect it. In Campbell and Cosans v UK, the European court held that education must respect parents’ philosophical convictions. A blanket requirement for registration, regardless of evidence or circumstance, may fall foul of that very principle. Not every religious school or environment is raising terrorists. Many of them are producing Nobel Prize winners, children who are totally blitzing every GCSE, children who are rounded and full of confidence.
A mother in rural England wrote: “I have taught three children from home, all of whom are now gainfully employed, emotionally stable and engaged in their communities. We have done this without needing state validation or supervision. If I now had to register and justify my choices retrospectively, it would feel like rewriting our family history through the lens of suspicion”.
This amendment makes clear that oversight should not be triggered where provision is already evidenced and functional. It reflects principles long recognised in other fields that where the state’s goals, be they safety, quality or accountability, are already being met, it need not intervene further.
I just want to share one testimony that I have been sent. One parent with qualified teacher status, who taught in state schools for over 12 years before home-educating, argued that the register was so vague that it risked turning families such as hers into scapegoats for failures that have nothing to do with home education. Another mother, a primary teacher of 15 years now teaching her own children, warned that repeated oversight by less experienced officials would be disproportionate and likely to be carried out by people who have no understanding of what is going on. I have one more: parents have been reported being referred to social services simply because their children were home-educated, despite data showing that home-educated children are less likely to end up on a child protection plan. One said that choosing to educate outside the system was in itself seen as neglect.
Lord Hacking (Lab)
My Lords, I support the noble Lord, Lord Wei, on all these amendments, but particularly on his Amendment 423. At an earlier stage in these proceedings, the noble Lord, Lord Nash, who is no longer in his place on the Benches, was very critical of home-schooling, alleging that there were poor results in home-schooling. Anything that home-schoolers can do in order to show the success of their home-schooling is to be encouraged. For that reason, I particularly support Amendment 423.
Baroness Barran (Con)
My Lords, all the amendments in this group in the name of my noble friend Lord Wei seek to find exemptions to the basic principle that there should be a register of children not in school; therefore, I cannot support these. First, the point of the register is to ensure that the local authority knows which children are not in school, and these amendments would undermine that. Secondly, and importantly, it allows home-educating parents to access support where they need it. I hope we might spend a bit more time on that in future groups. Finally, these amendments make an assumption that, in these conditions, it may be preferable to educate the child at home, and this could well be right, but, in my opinion, it remains reasonable and proportionate to record which children are not in school.
Lord Hacking (Lab)
My Lords, I think I have to correct myself, because I have said, on behalf of home-schooling mothers, that we favour the registry. I said that two years ago and during the Schools Bill of 2022. I did not comprehend that these amendments by the noble Lord, Lord Wei, are anti-register. I therefore cannot remain loyal to what I have just said in support of them, because I think the register is important, but Amendment 423 still stands good and I continue to support it.
Lord Addington (LD)
My Lords, very briefly, I find myself roughly in agreement with the noble Baroness, Lady Barran, on this one: a register should be there.
Lord Wei (Con)
My Lords, I want to clarify that, while I personally oppose the register totally, if there must be a register, I am proposing practical amendments. I believe the numbers shared earlier today were that the Government are going to have to get local authority officials to deal with more than 100,000 home-educating families. If they all have to be registered and a portion of them lead to various determinations and investigations, this will create a massive workload for already stretched local authority officers, who we know are struggling to catch the children we want to protect. My point in tabling these amendments is to create exemptions.
Baroness Barran (Con)
My Lords, I am so sorry to intervene on my noble friend again but, having introduced the group, he had a chance to make the points he needs to make. I think now is the time to hear from the Minister.
Baroness in Waiting/Government Whip (Baroness Blake of Leeds) (Lab)
My Lords, I thank my noble friend Lord Hacking for the clarification that he has just made, and the noble Baroness, Lady Barran, for a very clear explanation of why she is not supporting these amendments. As a former lead member for children’s services for the second-largest metropolitan authority in the country, I find it very difficult to recognise some of the comments that have been made tonight, and I emphasise the dedication and hard work of so many people whose primary, indeed sole objective is to make sure that all children in this country are safe from harm. It is so important to reference that as we go through.
I am not sure how many more times Ministers need to stress that there is total recognition of how many parents are out there working extremely hard to provide a suitable education when educating their children otherwise than at school. We have heard examples of the successes of so many of them, and we recognise that many of those children are thriving.
I emphasise that parents have no reason to fear the prospect of having to include key information on local authority children not in school registers. This information is vital to help local authorities discharge existing responsibilities and ensure that the education children receive is suitable and safe. As we have heard, without the registers, too many children and young people are at risk of falling through the gaps.
I will respond briefly to the amendments in this group, which are all tabled by the noble Lord, Lord Wei. They suggests exemptions for why a child’s information should not be included on a local authority’s children not in school register.
Amendment 254 seeks to ensure that, if a child does not fit the eligibility criteria, their parents would not be required to provide any information. This is unnecessary. If a child is not eligible to be registered, their parents would not be under the duty to provide information.
Amendments 230, 323, 324 and 326 seek to limit which children must be registered on a local authority children not in school register. A key objective of the registers is to aid local authorities in their existing duty to identify, as far as it is possible to do so, all children in their areas who are not registered pupils in school and are not receiving a suitable education. These amendments would prevent this.
Amendment 230 would exempt children if the parent is able to provide a sworn affidavit from an experienced home educator that the home education being provided is suitable, if the parent has arranged for the child to sit at least three national qualifications, or if the child is enrolled in certain educational provision. None of these proposed reasons for exemption would give a local authority enough assurance that the education being provided is suitable for an individual child.
Amendment 323 would exempt children who are temporarily residing in the UK with a permanent residence elsewhere. Where a child is living in the local authority’s area, even if only for a short time, the local authority has education and safeguarding duties towards the child.
I am particularly disappointed to see Amendments 324 and 326, where the noble Lord suggests exempting asylum-seeking families and families affected by war, natural disaster or economic collapse from registers. These are some of the very children who registers will most benefit. Where local authorities are aware of these children, they can offer support to ensure that their education continues undisrupted. The registers would simply not work if the exemptions that the noble Lord proposes were to apply.
Amendment 325 would enable children aged 14 or over to be exempt from being included on the register if they register as self-directed learners. Section 7 of the Education Act 1996 is clear: it is the responsibility of the parents to secure a suitable education for their child. Parents, not children, must remain accountable for this. As we have heard, most parents are fulfilling this duty, but registers will be a crucial tool in identifying where this is not the case so that these children can be supported into suitable education.
Finally in this group, Amendment 423 seeks to allow parents to discharge their duty to provide suitable education when their child is providing services, mentoring or trade-related activities. The Government’s guidance on home education for local authorities and parents sets out that a parent must provide their child with a full-time, efficient, suitable education. Parents therefore have the flexibility to educate their child in whatever manner they deem best for their child, provided it is suitable. This may be able to be achieved through school-type work or through practical education, such as the noble Lord mentioned, depending on the needs of the child. For the reasons I have outlined, namely that exemption of any eligible child for inclusion in the registers would mean that children who may be in receipt of unsuitable education fall through the gaps, I kindly ask the noble Lord to withdraw his amendment.
Lord Wei (Con)
I thank the Minister and my noble friend Lady Barran for their comments. Frankly, I am disappointed. I feel that many of the measures that I have proposed are designed to help our wonderful officials, who work in local authorities and are struggling under a huge workload, to focus their efforts with the register, which will create a lot of, let us say, false positives as well as genuine areas where intervention might be needed, and a huge amount of work. That is the focus of these amendments.
The point I wanted to raise about asylum seekers was that asylum seekers are obviously very vulnerable, but under the Bill, the moment when the details of the asylum seeker’s children are in the register, the clock starts ticking. They have two weeks to do it, they have to report X number of people’s email addresses and names, they might not even speak or write English, and yet the clock will start ticking. Of course, local authorities and we as a society need to support asylum seekers, but are we willing to put them through such an onerous process if they choose, for whatever reason, to home-educate? I am not sure that this has been really thought through.
It is not any part of my design to exclude asylum seekers from the support that local authorities can provide; it is just trying to be practical. While I recognise and really applaud the officials working on the front line—already under huge pressure and struggling to work out, within all the noise of all the many databases they have access to, where they should intervene—my concern is that without exemptions such as these, this is going to make their life much more difficult and may indeed lead to safeguarding scandals and problems because they have not been able to get around to the families and children who really do need help.
I am grateful for what has been said. I will reflect on it and may return to it at a later stage but, for now, I beg leave to withdraw the amendment.