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Children not in school consultation guide

The government are consulting on new regulations for education outside of school settings

In April 2019 the Government published a consultation entitled Children not in School. It proposes new legislation around home education and out-of-school education settings. 

Some years ago, when the Government was consulting on registering and inspecting out-of-school settings via Ofsted, the Alliance, alongside MPs, other faith and civil society groups raised objections to these proposals. These proposals could have regulated Sunday schools and church services, on vaguely-defined grounds such as undesirable teaching”. We considered these proposals disproportionate, and unable to add significantly to the existing powers of statutory agencies. The Government pledged last year not to proceed with these proposals. 

However, this consultation appears to re-introduce certain aspects of the proposals in a new form. It proposes to create a legal obligation upon proprietors’ of settings’ to take, maintain and store registers of attendance at a setting’ for state inspection upon request, with potential legal sanctions for failure to do so. 

This obligation on settings;’ is very broad. It could lead to the requirement for settings’ to keep and maintain registers, on the grounds that home-educated children may attend them, which could have a major impact on churches, faith-based organisations, families and wider civil society.

To make sure that the Government’s proposals are proportionate, we encourage you to respond to section 3 (questions 43 – 53) of this consultation, which covers obligations on such settings. If you are involved in home-education, you may also want to respond to other parts of this consultation. The consultation closes on Monday, 24 June 2019. Please use your own words and relevant examples from your own experience.

Two required questions in the consultation concern home education. These are:

7. Do you agree that local authorities should be obliged to maintain a register of children who are not registered at specified schools (those listed at paragraph 2.2 of the consultation paper) or being educated under s.19 arrangements?

We will be answering no” to this question. While this legal duty on Local Authorities may be appropriate in the future, it seems premature to consider it before assessing the evidence for the effectiveness of existing voluntary schemes operated by local authorities. Given significant questions around the implementation, cost and proportionality of mandatory registration, it would appear unwise to proceed with this without evidence that it would address the actual needs.

32. Do you agree that parents should be under a legal duty to provide information to their local authority about a child who is within scope of the proposed registration requirement?

We will be answering no” to this question. The answer to this question will depend a lot on what the information” is that the law might require. If this information was just what was actually needed (such as name, date of birth, or date home education began) this would seem reasonable. However, if this information required was far more expansive, intrusive and focused on the suitability’ of settings, such a duty would not appear to be proportionate or wise. As the Government has been vague about key terms in this consultation, including information”, respondents may consider it prudent to withhold judgement by answering no” until further information is provided.

Evangelicals will have a range of views on home-education and the relationship between home-educating parents and local authorities. If you have specific experience of home education, you may wish to answer the other questions in these sections with more detail. Otherwise, you can move straight to the questions below. These questions concern duties on settings” which could include a wide range of church activities. 

Key consultation questions

43. Do you agree with the general approach that the proprietors of settings providing education in school hours — other than specified types of school — should be under a duty to supply information to local authorities about any child in scope of the proposed register?

We recommend that you answer No”.

  • There is no definition of setting’ ‘[normal] school hours’ or proprietor’ [of a setting] within the consultation, or in law. This question presumes the existence of these terms. It is the definition and interaction of these words that will determine the impact and scope of these proposals. Without clarity of these definitions, churches, Christian families, faith-based organisations and wider civil society groups, and individual families are entitled to be concerned. 
  • School hours’ vary considerably by region, local authority, age of pupils and type of school, even differing significantly within a single town or city given the diversity of provision encouraged by the Government. This would appear to make any central definition of normal school hours’ unworkable.
  • Depending upon definition of ‘[normal] school hours’ this could lead to the registration of early morning prayer meetings and after school bible studies. This would amount to a state backed register of religious attendance for those up to age 19 — an unprecedented and unacceptable infringement of religious liberty more readily associated with regimes that have dubious human rights records.
  • The costs of creating, administering and storing such registers would amount to a huge burden upon civil society running into the tens of millions of pounds and is likely to lead to a loss of social capital and a reduction of voluntary ad-hoc activities.
  • Museums, National Trust properties, Parliament, leisure centres and many others would potentially be required to register the attendance of any unaccompanied young person up to the age of 19 during normal school hours’ as there is no meaningful way of determining which teenage visitor is home-schooled. This would be expensive and unworkable upon a sector already struggling due to cuts in public funding of £400m.
  • Such a national register (or a plethora of local registers’) is extremely unlikely to make children safer or indeed highlight children not already known to the local authority. For the small number of individuals running illegal schools’ who already wilfully disregard laws on registered schools and health and safety, this will sadly just be another law to flout. However, for law abiding families, civil society and faith communities this represents an unprecedented bureaucratic burden and a potential breach of the Government’s previous pledges not to regulate church life.

The numbering of the following questions depends on your previous answer. If you responded no, these are the relevant question numbers.

49. Which settings do you think should be included in the scope of the duty? 

  • There is no definition of setting’ provided in the consultation document. The Government should not consult upon any new statutory duty until it has ascertained its scope. It cannot do this without providing some basic definitions which it has failed to do. 
  • The consultation assumes that a setting’ can be proportionately defined without unintended consequences. Previous efforts to define out-of-school settings” were highly controversial, and the Government decided not to proceed with them. The DfE has given no indication of having formulated a better definition of setting since then.
  • Church services, prayer meetings, home bible study groups should not be within the scope of any proposals as to do so would create a state inspected register of religious attendance – a model of religious liberty more akin to non-democratic regimes. 

50. Which information should proprietors of the settings in scope be required to 

(a) keep in the setting’s own register and 
(b) supply on request to the local authority about a child in scope of the registration requirement? 

  • Grandparents, Church services, prayer meetings, home bible study groups should not be within the scope of any proposals as to do the latter would create a state inspected register of religious attendance.
  • The question assumes the existence of a definition of proprietor’ and setting’ -but these terms are not defined in the consultation. 
  • These wording of these definitions will determine the scope’ of any duty and the extent of any registration requirement’. 
  • As there is no definition of setting’ within the consultation, it is hard to respond effectively to the flawed premise contained within the question.

51. Do you agree that there should be a sanction on the proprietor for non-compliance with a duty to supply information about a child in scope of the registration requirement? 

  • As there is no definition of proprietor’ normal school hours’ or setting’ within the consultation, it is hard to respond effectively to this question as these stipulations will determine the scope of any duty.
  • Grandparents, Church services, prayer meetings, home bible study groups should not be within the scope of any proposals as to do so would create a state inspected register of religious attendance.
  • It would be wholly inappropriate outcome for the state to threaten to punish potential proprietors’ such as church pastors for failing to provide a register of religious attendance at a prayer breakfast or afternoon bible study. 
  • Such a register would act as an impediment to youth ministries who interact with vulnerable young people. Requiring formal registration within any interaction is likely to alienate a young person and undermine trust. 
  • In any event, many such young people would give false names and details for a variety of reasons – rendering any register’ of little value and great cost. Would the proprietor’ of the setting’ face sanction for inaccurate and/​or incomplete registers?

53. Do you have any other comments about the concept of a duty on the proprietors of settings to provide information about children who attend their setting and fall within scope of the registration requirement?

  • You may want to take the opportunity to re-emphasise some of the points you have made which you think are most critical, or to give examples from your own experience here. 

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