On 31 January the Welsh Government launched their long-expected Consultation on Children Missing Education Database. This seeks views on the “children missing education database proposal and regulations for local authorities and local health boards.” The closing date is 25 April.
The documents available on the consultation home page are as follows:
- the Consultation document
- the Regulations, i.e. the Statutory Instrument to be laid before the Senedd
- an Integrated Impact Assessment summary
- a draft Children’s Rights Impact Assessment
- a Word version of the response form for those wishing to respond by email or by post
- a link to the online response form.
Those wishing to respond on line can click through directly to the response form page. This states that respondents can save the form to complete later by providing an email address. There is no apparent word limit on the free text boxes.
What’s in the Consultation Document?
The Consultation document is not a difficult read. The introduction reminds readers of the Welsh Government’s previous (2020) consultation on draft regulations requiring each local authority to set up a database of all compulsory school age children in their area, to establish whether children were in receipt of a suitable education. After linking to a summary of responses to that consultation, it goes on to explain that the Welsh Government is now consulting on:
“revised database regulations that place a requirement on each LA to establish a database of only those children in their area who may be missing education and/or may not be in receipt of a suitable education, that is, they are not receiving education at school, otherwise than at school (EOTAS provision), or they are electively home educated (EHE) and not known to be in receipt of a suitable education.‘ [Emphasis added]
Other key points are:
- “The regulations will place requirements on LHBs and general medical contractors (as data controllers), to share information about children usually resident in the LHB area, with the relevant LA on an annual basis.”
- “These regulations will be amended in order that they can be piloted across a small number of LAs and LHBs in the first instance, for one year. The pilot will be evaluated before any arrangements are implemented more widely.”
The document goes on to detail the Welsh Government’s rationale behind these proposals to identify children they do not know about who are potentially missing education. They claim this is based on a requirement from Section 175 of the Education Act 2002 that local authorities undertake their education functions “with a view to safeguarding and promoting the welfare of children.’
Essentially the database will operate by combining data from two sources, the Pupil Level Annual School Census and data from independent schools plus information from LHBs/general medical services contractors. This should yield a “reasonably complete list of all compulsory school age children, regardless of where they are educated.’ By cross-referencing and a process of elimination, local authorities believe this will then enable them to identify children not known to them who may be potentially missing education.
The Consultation document concludes with a list of all the questions from the response form.
The Response Form
There are a total of twenty-three questions. After several general questions, four are specific to LHBs, two to general medical services contractors, and five to local authorities. The form concludes with a question about disproportionate impact on those with protected characteristics, two about the use of the Welsh language, and finally an opportunity for respondents to report “any related issues which we have not specifically addressed.’
There is no initial opportunity for respondents to self-identify specifically as parents or home educators, or comment as such. Question 5, which seeks views on the advantages/disadvantages in the disclosing of the required data to populate the database, directs respondents to complete the section relevant to them, offering the generic options of ‘Parents and carers’ or ‘Children and young people.’
What is the Draft Regulations document all about?
The draft Regulations document opens with an explanation about them being made under Section 29 of the Children Act 2004. It may helpful at this point to understand a little more about how subordinate legislation works in Wales. This page sheds more light on the process:
Subordinate legislation (which is also referred to as delegated or secondary legislation) takes a variety of different forms. It includes orders, regulations, rules and schemes, and can include statutory guidance and local orders. Its name derives from the fact that it is subordinate to primary legislation (Acts of Parliament or Acts of Senedd Cymru, National Assembly Acts or Assembly Measures). Most subordinate legislation is made by statutory instrument (the most common form of subordinate legislation is a statutory instrument containing regulations or an order).
In passing an Act, Parliament or Senedd Cymru will have approved its principles, general objectives and important points of detail. However, the Act will usually also give Ministers (the Secretary of State or the Welsh Ministers depending on the subject matter), or some other body, powers to make detailed regulations or compel action relating to how the main law is implemented. Subordinate legislation often provides the finer detail necessary to flesh out the primary statements of law found in Acts. This can include, for example, specifying a process required by law (such as the process of applying for a licence) or defining with precision when a particular legal rule applies, and to whom it applies.
From this we can see that the Welsh Government have had the template document to enact any necessary additional detail ready and waiting. It is just a question of bringing it into force once the final product emerges from the consultation process. This is why the official document remains undated at this stage.
One of the Impact Assessment documents explains the “Mechanism’ thus: “Secondary legislation will be introduced by way of an Order to bring section 29 of the Children Act 2004 into effect, and two sets of regulations.’
Why two Impact Assessments, and do I need to read them?
Yes, it’s really important to read both these documents. They will give you further insight into the Welsh Government’s thinking as you prepare your response.
a) The Integrated Impact Assessment [IIA] reviews the potential impact the proposals will have on local authorities and LHBs. Article 28 of the UNCRC and Article 2 of the ECHR feature here, along with the Government’s own policy agendas enshrined in the “Programme for Government,’ with particular reference to “the goal of a more equal Wales.’ This is a much bigger agenda, outside the scope of this post, but important to be aware of. It has its foundations in the Well-being of Future Generations (Wales) Act 2015. This short video conveys something of the underlying agenda.
The IIA also includes the Welsh Government’s assertion that they have listened to stakeholders and made appropriate adjustments in response to feedback from the first consultation. The Minister for Education and Welsh Language agreed that “the scope of the database would be reduced and that the rationale for the proposals would more closely align to the policy intent..’ Details of all the departments and agencies which collaborated with the Government in preparing the proposals are included, and the views of stakeholders and the public are said to have informed the development of the policy, with the “revised proposals seek[ing] to address the main points that were raised.’
Though the majority of Welsh home educators will likely remain very unhappy with these revisions, this clearly emphasises the importance of taking up every opportunity to respond with robust feedback. Children and their families are the real stakeholders!
b) The Children’s Rights Impact Assessment is another important resource to help respondents understand the thinking underpinning these proposals.
For example, here we find the Welsh Government’s statement that they consider their proposal, on balance, to be “a reasonable and proportionate approach.’ Section 2 sheds light on their approach to positive and negative parental motivation for choosing home education, then goes on to detail their views about how the policy will or will not impact on certain groups of young people. (It is hoped to explore at a later date the worrying implication that those parents who have deregistered for what WG deem ‘negative’ reasons may be considered less likely to be able to provide a suitable education, and therefore be at risk of greater scrutiny.)
The section detailing how the proposals either enhance or challenge the relevant UNCRC Articles is very informative. Out of the nineteen Articles deemed relevant in this instance, the Welsh Government claim that their proposals enhance sixteen of them, challenge two, and both enhance and challenge a further one. These merit careful attention from anyone intending to submit a response.
Whilst the legal basis for disclosure of data by LHBs and independent schools to LAs is strongly claimed, it’s important that respondents also think carefully about other issues which are conspicuous by their absence.
This post has attempted to serve as an introduction to the practicalities of the consultation and the issues it raises. It is hoped there will be plenty of further opportunity for discussion and exchange of ideas about our concerns in home ed groups, ahead of the deadline for preparing and submitting responses.
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