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New Guidance Published – Warts and All

On Friday 12 May, after many delays, the Welsh Government published its new statutory guidance for local authorities. This was almost exactly a year after Education Minister, Jeremy Miles MS, had informed Senedd that his Department was “seeking further evidence in support of the proposals…” He added:

The unforeseen delay in receiving this evidence may result in the proposals being brought before the Senedd in September rather than June as was intended. However, it is not expected to impact on the timescale for the implementation of the proposals in April 2023. (emphasis added)

September became November, which in turn shifted to April this year. Now they have arrived, and initial reactions are that the Equity in Education team really have not been listening to the majority of elective home educators in Wales, even though we are sure they will tell us that they have been doing so.

The 2019 English guidance marked a significant change in the emphasis of secondary legislation concerning EHE, but the narrative being followed by the Welsh administration takes the intrusion into the privacy of family life even further!

Sections of the guidance give the impression of being copied concept by concept from the present English equivalent. However, the problems in these appear to be even more deeply embedded in Wales than in Westminster. Alternatively, the Department may just be being more honest about their belief that the State has a prior responsibility for every child in Wales, a responsibility which supersedes that of their parents.

Where does this conviction come from? From the start there are repeated references to Human Rights and especially the United Nations Charter on the Rights of the Child [UNCRC]. What is striking is that whilst the original benefits of the creation of “Human Rights” introduced in the wake of the Second World War were to protect citizens from over-intrusive states, these so called ‘rights’ are now being used to justify the removal of the right to a private life – especially within the family.

One clear example of this invasion of privacy is found in s7.21:

“Data protection legislation allows for the sharing of information and should not be automatically used as a reason for not doing so. One of the specific circumstances which provides for information sharing is to prevent abuse or serious harm to others. When information is not shared in a timely and effective way, decisions made may be ill informed and lead to poor safeguarding practice and leave children at risk of harm.”

The above wording seems designed to mislead LA employees; alternatively it could easily be the result of a lack of understanding within the Department itself. This section – and many others – require careful examination by legal experts. However, there does appear to be a lack of clarity about the safeguarding legislation being referred to here. Consequently the impression is given that it is being either ignored or steamrollered over by vague phraseology.

‘Serious harm’ is a precise term, and families are protected from abuse of this category through the existence of clear legal thresholds which have to be crossed, and clear procedures which have to be followed, before professionals can intervene without consent from the citizens concerned.

Education officers do not receive the same training as social workers on such matters, and there is a real danger that many will not appreciate the limitations on data sharing “to prevent abuse or serious harm to others.” Non-consensual interventions simply cannot be made routinely or on a whim. The above section fails to make this clear, and therefore could easily be read as suggesting that education officers should not stop to think before making a request for data sharing about a home educated child and their family.

When Families First in Education – Wales launched, we had been provided with a submission to rebut the arguments of the then Children’s Commissioner for Wales in regard to state supervision of home educated children. That rebuttal was written by a pro-bono legal advisor who specialises in human rights law and is employed by an international advocacy charity. We sent their rebuttal to the Minister for Education, and emailed a summary to every member of Senedd.

In respect to Sally Holland’s view that LAs need to meet with electively home educated children, the summary argued:

“Third, the Commissioner’s assumption that the CRC requires public bodies to talk to home educated children under the ‘right to be heard’ is incorrect. This claim ignores at least two fundamental human rights that the UK is obliged to honour: the right to a private and family life, and the right to privacy. It is also not true to the plain meaning of the CRC text.

Article 8 of the European Convention on Human Rights (ECHR, which is directly applicable in UK) provides: ‘There shall be no interference by a public authority with…this right except such as is in accordance with the law and is necessary in a democratic society’. The European Court has held that this right, when applied to the topic of safeguarding, means that countries cannot presume that the interests of the child are different to those of their parents unless there’s clear and compelling evidence of harm. Yet, the recommendation for children to be interviewed outside their parents’ consent, and absent of any threat of risk to the child, introduces a ‘preventative’ measure; it tries to introduce public authority interference in legitimate private activities without justification. This could infringe Article 8 and could create complications between the Senedd and Westminster.”

It is clear from the Ministerial Statement which accompanied the publication of the new guidance that Jeremy Miles and his officials have either ignored this constraint on their powers, or believe it not to apply in Wales. For in it he states:

“The guidance sets out the Welsh Government expectation that in order to determine whether the education provided by a parent is suitable, the local authority should see and communicate with the child. Seeing and communicating with the child not only provides an opportunity for the local authority to better understand how the child learns and what areas of learning they are interested in, it also provides an opportunity for home educated children to share their views on the education they are receiving. This is key to upholding the right of all children to participate in decision making that affects their lives.”

Allan Norman – a registered social worker in England and a non-practising solicitor who is also a visiting lecturer on both social work and law programmes at several universities – was one of the first people to comment on the data protection issues within the Scottish Named Person Scheme. Three years later, and shortly after the Supreme Court ruled was that the Scheme was illegal on the very grounds he had identified, Norman wrote this excellent article explaining its significance, “The ‘Named Persons’ Scheme – When Protecting Wellbeing Is Totalitarian.” In it he made this observation:

“Some might question how a scheme can simultaneously have benign intentions and the potential for totalitarianism. But this judgment does indeed explain that the two are not mutually incompatible. The benign intentions segue into totalitarianism where there is insufficient regard for individual difference, and where state interference is arbitrary, and lacks procedural safeguards. Eileen Munro, writing about the Every Child Matters agenda in England, once observed:

‘In policy debates, there seems to be an assumption that there is some objective measure of what is in a child’s best interests and some objective standards of good parenting applicable in all social circumstances. The possibility of rational disagreement between a parent and a professional on what is in the child’s best interests at a particular point in their lives is not addressed.'”

Though written in 2007, Professor Munro’s abstract which summarises her paper explains the motivation behind the policy underpinning the latest guidance.

“Emerging child welfare policies promoting preventive and early intervention services present a challenge to professional ethics, raising questions about how to balance respect for service users with concern for social justice. This article explains how the UK policy involves shifting the balance of power away from families towards State and professional decision-making. The policy is predicated on sharing information between professionals to inform risk and need assessment and so poses a problem for the ethic of confidentiality in a helping relationship. This article examines the arguments for information sharing and questions whether the predicted benefits for children outweigh the cost of eroding family privacy and changing the nature of professional relationships with service users.”

Do read the conclusion of her article at least, that being the section from which Norman quoted. There are many other concerns about this revised guidance, but it appears that the Government is walking on ice which has already been cracked if they are seeking to justify non-consensual data sharing between agencies simply because a child is being home educated.

Families First in Education – Wales continues to work with the charity which provided our initial submission and we are able to confirm that they have a team of barristers and solicitors which is examining the detail what has been set out by the government. Further, they intend to provide a written summary of their views about the measures so that we can make it available to Senedd members prior to the Minister for Education’s statement on the guidance, which is timetabled for the Plenary session on Tuesday 6 June.


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