Treating parents who home educate like criminals – a potential breach of human rights law, warns top lawyer

Government plans to treat parents who home educate their children like criminals requiring them to provide the state with swathes of information including registering all co and extra-curricular activities could constitute a breach of human rights law, warns a top lawyer.

The lawyer, Aidan O’Neill KC, from Matrix chambers, was commissioned by The Christian Institute to review the Children’s Wellbeing and Schools Bill, which was published late last year.

Mr O’Neill, a top human rights and constitutional law expert, sets out his concerns about the proposed legislation in unusually frank language, finding that: “…there is simply no evidence to suggest that all homeschooled children and their families require to be a particular focus of concern by the State…”, that it is “not legitimate for the State to presume to stand in loco parentis when a child’s parents are in place and fully able to nurture and support and make provision for the proper education” and “by failing to distinguish the potentially legitimate aim of preventing harm to children from the illegitimate aim of imposing the State’s view of wellbeing for children, the measure at issue may not constitute a proportionate interference in the fundamental rights of the families and children involved, and hence be Convention incompatible.”

He goes on: “The basic principles of the proposed regulation of homeschooling provisions contained in the current Bill which raises concerns as to their fundamental rights compatibility concern this use of the coercive powers of the State over and against the family. These include the following matters:

“(1) the compulsory nature of the registration provisions for all homeschooled children, even in cases where there are simply no welfare concerns about the children or families involved;

“(2) the proportionality of the measures requiring, under threat of criminal sanction, the provision to local authorities of significant and non-anonymised data on homeschooled children, their parents, and all and any non-parents involved in the provision of education activities to them;

“(3) the collation and recording and use which might be made of this data required under compulsion, as well as of such further data and information concerning homeschoolers and the individual homeschooled child which the local authority decided to place on its register;

“(4) the local authority’s ‘monitoring’ of the homeschooled child (simply because they are homeschooled) and the presumption of its right to share with other State agencies such data collated by it on the homeschooled and homeschoolers.”

While admitting that parliamentarians could rectify these problems, “because the relevant provisions have not yet assumed any final form in statute and have not yet come into law,” Mr O’Neill is scathing about the “opaque” data protection provisions which would almost certainly breach the UK’s GDPR regulations.

He concludes: “While there is undoubtedly scope for the State authorities to have specific and special records in relation to those children in respect of whom they have good reason for concerns around the homeschooling of these children (potentially opening up the risk of the child suffering significant harm within the home), it cannot be the case that the simple fact of a child being homeschooled is of itself a risk factor such as to justify the increased State surveillance of children and their parents such as is represented by this proposed register.

“And on the issue of unjustified differential treatment in breach of Article 14 ECHR for the homeschooled compared to those children who are educated in school, I agree with the briefing document produced by The Christian Institute when it makes the following points:

“Home-educating parents are being required to reveal to the State, for inclusion on a register, a level of information that is not held on school-attending children.

“If a school-attending child has private music, maths or sports tuition in an evening or at a weekend, there is no requirement for the child’s school or the local authority to be aware of this. If a home-educated child was to attend the same tuition, the parents would have to inform the local authority of the name and address of the tutor and the amount of time spent in tuition. This is clearly discriminatory.

“There is nothing in the Bill to exclude religious instruction from ‘education’. It appears home-educating parents will have to report to the local authority that their child attends Sunday School, including the postal address of the church and names and addresses of the Sunday School teachers. This has echoes of totalitarian states.

“Parents would also have to notify the local authority of any changes to these arrangements within 15 days, i.e. if the tuition stops or any new tuition is started. This would be an ongoing burden of reporting changes in family routine to the State, which is not expected of school-attending children.

“All this is remarkably intrusive. Why should home-educating parents have to give the LA such detailed information about their family lives? It treats them as a suspect category and the State will hold a high level of sensitive personal data about home-educated children compared to school-attending children.”

Simon Calvert, Deputy Director at The Christian Institute commented: “This legal opinion casts real doubt over whether the Government’s Bill is compatible with the ECHR. It could even be challenged in the courts by home-educating families.

“The proposals treat all parents who home school with suspicion and impose onerous oversight requirements for the extra-curricular activities their kids are involved in. And if a child regularly attends Sunday school, a swimming club or even a library reading group, those who provide these sessions, often volunteers, might be required to collect information on home-schooled kids that they don’t have to collect on others and provide it to the state. If they make a mistake they risk punitive fines.

“As the legal advice says, while the State has an interest in ensuring the welfare of children, these proposals go way beyond what is legitimate or proportionate and constitutes an intrusion on the right to family life.”

“Parents who home educate do so for a wide variety of reasons, including inadequate SEND provision, bullying at school, or philosophical beliefs. Rather than treating them like criminals, the Government should be finding more ways to support them.”

ENDS