Yes, parents have the right to educate their children at home. But children have rights too | Sonia Sodha

What happens when a parent’s right to decide how to bring up their child comes into conflict with that child’s right to a safe, fulfilled life? Happily, there is usually no such dilemma. But where there is, one of the most fraught questions about the power of the state to intervene in the privacy of family life is posed.

There are very good reasons to be wary of the state’s over-involvement in the parent-child relationship: in the words of Lady Hale, the former president of the supreme court, “in a totalitarian society, uniformity and conformity are valued. Hence, the totalitarian state tries to separate the child from her family and mould her to its own design.” The law strives for a balance between protecting children and the privacy of the family: the state cannot take parental responsibility for children simply because it believes it would be better for them if it did so; it can only intervene where a child is otherwise likely to suffer significant harm.

One important area in which that delicate balance is challenged is in the regulation of home schooling, under the spotlight last week after Labour announced it would introduce a compulsory home schooling register in England to help tackle rising levels of school absence. The legal framework for home schooling is messy. Parents have primary responsibility for their child’s education, and can choose to educate them at home. But all children have the right to an education, and local authorities have legal duties to ensure all children in their area are safe and are receiving “suitable” full-time schooling.

There are a number of reasons why parents might opt to home school. Some may choose it because they are philosophically opposed to the way education is delivered in state schools – or even, as in the “unschooling” movement, to the concept of formal education itself. Others may feel forced into it because the school system isn’t meeting their child’s educational or behavioural needs, or is undermining their wellbeing or mental health; more parents will find themselves in this position as a result of cuts to services and support for children with additional needs. Still others come under illegitimate pressure from schools looking to get children with behavioural problems off their rolls.

And then there are the clear safeguarding risks: a small number of parents may keep children experiencing abuse and neglect out of school to avoid them coming into contact with professionals; a sad fact of living in a society where abuse and neglect are too prevalent. Humanists UK estimates there are at least 6,000 children in England being educated not at home but in illegal religious schools offering mostly scriptural education, sometimes characterised by unsafe conditions and even abuse.

While the law says that all children have the right to a full-time education, it is almost impossible for local authorities to fulfil their legal duties to ensure they get one. First, we do not know how many children are home educated because parents are not obliged to register them. Local authorities keep voluntary registers that indicate numbers have gone up significantly in recent years, particularly in the wake of Covid – there were at least 86,000 in spring 2023 – but the true number could be considerably higher.

Second, the law barely defines a “suitable education”; draft guidance suggests that local authorities should interpret this as appropriate levels of literacy and numeracy and not teaching values or behaviours in conflict with “fundamental British values”, such as extremism, or violence towards protected groups; and that isolating children from peers of their own age “can indicate possible unsuitability”. This leaves both local authorities and parents in the dark as to their legal responsibilities.

Third, while the law is clear that local authorities must intervene when children are not receiving a suitable education, they have few powers to do so. Parents do not have to comply with requests for a meeting or to supply information. They do not have to allow professionals to meet their children.

Even if they are in contact with parents, this does not necessarily allow professionals to form a good picture: in research with local authorities, one reported that after a parent was taken into hospital it became clear that despite the eloquent written reports they had submitted over a six-year period, their child had received no educational stimulus nor seen a single professional during that time. Another conducted an assessment visit in which the family were using brand-new textbooks the officer believed were bought purely for that visit. Local authorities can issue school attendance orders where they deem a child is not receiving a suitable education, but they are expensive, can take months to pursue through the courts, and some parents would rather just pay the fine that is imposed for non-compliance.

Finally, while the government is clear that educational neglect is itself a safeguarding issue, home schooling makes safeguarding more difficult. If a child is not attending school, it’s much harder for a local authority to identify and investigate safeguarding risks; the catch-22 is they are only able to access a child if they can show safeguarding concerns but children in home education may have next to no contact with professionals.

The UK is an international outlier; a 2018 survey of European countries found a dozen allow home schooling only in exceptional circumstances with parents usually needing sign-off from education authorities; and that every country except Britain and the Netherlands monitored and assessed pupil progress. Labour’s pledge to create a compulsory home school register, an idea that has been in the ether for a couple of decades, and a unique digital identifier for every child is welcome, and reflects calls from the children’s commissioner. But it isn’t enough: the government needs to set clearer shared standards for what children have the right to access educationally, and give local authorities greater powers to assess whether they are receiving an adequate education, and to intervene if not.

This may be deeply unpopular with parents who feel they are doing an excellent job of educating their own children and see this as overly interventionist. But a child’s right to an education is too important to fudge the question of who defines the legal minimum all children are entitled to, not just those in school, and how to ensure that they get it, just because it is so difficult to answer.

Sonia Sodha is an Observer columnist