Home education guidance

Section 2 Relevant law

2.1 This section sets out legislation, and references case law and international law, that is relevant to home education. It covers:

• the statutory nature of this guidance;
• a child’s right to an education;
• the parent's responsibility for providing that education;
• the need for consent to withdraw a child from a public school;
• a local authority’s responsibility to satisfy itself that suitable and efficient education is being provided.

The law extracted and described below is up to date at the time of publication, and legislation, including any amendments to it, can be accessed on www.legislation.gov.uk.

Status of this guidance

2.2 As noted at paragraph 1.2, this guidance is issued under section 14 of the Standards in Scotland's Schools etc. Act 2000. This means that local authorities must have regard to the guidance.

Standards in Scotland's Schools etc Act 2000

14. Guidance to education authorities as to home education

The Scottish Ministers may issue guidance as to the circumstances in which parents may choose to educate their children at home; and education authorities shall have regard to any such guidance.

The right to an education - international law

2.3 The UNCRC is one of the core international human rights treaties. It sets out the civil, political, economic, social, and cultural rights that all children, everywhere, are entitled to. The UNCRC articles are interdependent – the mutually-reinforcing nature of children's rights means that civil, political, economic, social, and cultural rights all have equal status and no one article is more important than another.

2.4 The UNCRC contains a number of provisions relating to rights to education, the right to play, the right to health and the right to respect for privacy and family life. The themes of the voice of the child and of supporting a child to reach their full potential underpin the articles and are relevant in the consideration of home education in this guidance. While the articles of the UNCRC^[13] are universal, inalienable, indivisible, and interdependent, Articles 2, 3, 12, 23, 28 and 29 are the most relevant here, in addition to Article 2 of Protocol 1 of the European Convention on Human Rights (ECHR). These are set out below.

European Convention on Human Rights - Article 2 of Protocol 1

No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching is in conformity with their own religious and philosophical convictions.

UN Convention on the Rights of the Child - Article 2

Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.

UN Convention on the Rights of the Child - Article 3

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

UN Convention on the Rights of the Child - Article 12

Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

UN Convention on the Rights of the Child - Article 23

Parties recognize that a mentally or physically disabled child should enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child's active participation in the community.

UN Convention on the Rights of the Child - Article 28

Parties recognise the right of the child to education.

UN Convention on the Rights of the Child - Article 29

Parties agree that the education of the child shall be directed to:

(a) The development of the child's personality, talents and mental and physical abilities to their fullest potential;

(b) The development of respect for human rights and fundamental freedoms, and for the principles enshrined in the Charter of the United Nations;

(c) The development of respect for the child's parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own;

(d) The preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin;

(e) The development of respect for the natural environment.

2.5 The UNCRC encourages families to offer guidance to their child to develop the child's understanding of their own rights, and enshrines the right for every child to express their views and be involved in the decisions that affect them. Specifically, Article 12 of the UNCRC provides a right for children to express their views and for due weight to be given to those views, in accordance with the age and maturity of the child. Article 28 of the UNCRC states that all children have a right to an education and that primary education should be compulsory and free. Article 29 states that education should develop each child's personality and talents to the full. However, one of the underlying principles of the UNCRC is the best intentions of the child, and Article 3 requires all adults to think about how their decisions will affect children and to do what is best for the child. Local authorities and parents/carers should consider how the individual and collective voices of home educated children can be heard.

2.6 In relation to education, thus far there is little national or international case law to provide guidance as to the balance that must be struck between the views of the parent/carer and the views of the child in relation to the child's education.

The right to an education – domestic law

2.7 It remains the duty of the parent/carer to provide for the efficient and suitable education of their child, as set out in section 30(1) of the 1980 Act. Further consideration of an efficient and suitable education can be found at paragraph 2.13.

2.8 Section 6 of the Children (Scotland) Act 1995 sets out the responsibilities of the parent to have regard to the views of their child in relation to major decisions.^[14] Prospective amendments to that Act made by the Children (Scotland) Act 2020 further clarify that in considering a child's capacity for forming a view, the presumption should be that the child is capable of doing so.

Children (Scotland) Act 1995, Section 6 (1)

(1) A person shall, in reaching any major decision which involves:

(a) his fulfilling a parental responsibility or the responsibility mentioned in section 5(1) of this Act; or

(b) his exercising a parental right or giving consent by virtue of that section;

have regard so far as practicable to the views (if he wishes to express them) of the child concerned, taking account of the child's age and maturity, and to those of any other person who has parental responsibilities or parental rights in relation to the child (and wishes to express those views); and without prejudice to the generality of this subsection a child twelve years of age or more shall be presumed to be of sufficient age and maturity to form a view.

2.9 All those working to provide education for children and young people can find out more on how to develop their understanding of children's rights Education Scotland^[15] and from the Children and Young People's Commissioner Scotland website^[16]. Further guidance on the UNCRC Act can be found at Introducing the UNCRC (Incorporation) (Scotland) Bill - Taking a children's human rights approach: guidance - gov.scot (www.gov.scot).

Parents are responsible for providing their child with an education

2.10 As set out at paragraphs 1.2 and 2.7 of this guidance, it is the duty of the parent or guardian of every school age child to provide an education, either by sending their child to school, or by other means.^[17] Home education is a right conditional upon the parents/carers providing an efficient education suitable to the age, ability, and aptitude of the child.

Education (Scotland) Act 1980 – Section 30

(1) It shall be the duty of the parent of every child of school age to provide efficient education for him suitable to his age, ability and aptitude either by causing him to attend a public school regularly or by other means.

(2) Section 1 of the Standards in Scotland's Schools etc. Act 2000 (right of child to be provided with school education by, or by virtue of arrangements made by, an education authority) is without prejudice to the choice afforded a parent by subsection (1) above.

2.11 Sections 28(1) and 30 of the 1980 Act set out the duty of the parent/carer to provide education for their child, and the general principle that a child is to be educated in accordance with the wishes of their parents/carers, below:

Education (Scotland) Act 1980 – Section 28

(1) In the exercise and performance of their powers and duties under this Act, the Secretary of State and education authorities shall have regard to the general principle that, so far as is compatible with the provision of suitable instruction and training and the avoidance of unreasonable public expenditure, pupils are to be educated in accordance with the wishes of their parents.

2.12 Choosing to home educate a child does not require consent from the local authority if the child has not commenced attending a school at the point when they would have commenced a school education. Further details on where exemptions may apply are available at paragraph 3.8. However, if a parent/carer decides to withdraw their child from school in order to home educate them, the parent/carer must seek the consent of the relevant education authority.

Duties placed on local authorities

2.13 In all their educational responsibilities, local authorities should have regard to the views of parents/carers and the decisions that they make in relation to their child's education. Authorities should have regard to the views of parents/carers and to those of the child and seek to support families in the choices that they make by offering advice and clear, accurate information and resources where feasible.

2.14 Sections 35 and 37 of the 1980 Act make provision in relation to home education. Section 35 provides that the consent of the authority is required for a child to be withdrawn from an education authority school. Section 37 requires an authority to take action where they are not satisfied that an efficient and suitable education is being provided to a child.

Education (Scotland) Act 1980 - Section 35

(1) Where a child of school age who has attended a public school on one or more occasions fails without reasonable excuse to attend regularly at the said school, then, unless the education authority have consented to the withdrawal of the child from the school (which consent shall not be unreasonably withheld), his parent shall be guilty of an offence against this section.

Education (Scotland) Act 1980 - Section 37(1)

(1) Where a child of school age has not attended a public school in the area in which his parent is residing, or has attended such a school and has been withdrawn therefrom with the consent of, or excluded by, the education authority, then, if the authority are not satisfied that the parent is providing efficient education for him suitable to his age, ability and aptitude, it shall be the duty of the authority to serve a notice on the parent requiring him within such time as may be specified in the notice (not being less than seven or more than fourteen days from the service thereof) either -

(a) to appear (with or without the child) before the authority and give such information as the authority may require regarding the means, if any, he has adopted for providing education, or

(b) in the option of the parent, to give such information to the authority in writing.

Education (Scotland) Act 1980 - Section 37(2)

If a parent on whom a notice has been served in pursuance of subsection (1) above fails to satisfy the authority that he is providing efficient education for the child suitable to his age, ability and aptitude or that there is a reasonable excuse for his failure to do so, the authority shall make an attendance order in respect of the child in accordance with the provisions of section 38 of this Act.

2.15 The Education (Additional Support for Learning) (Scotland) Act 2004, as amended in 2009 (“the 2004 Act”) places duties on education authorities to identify, provide for and review the additional support needs of children and young people whose education they are responsible for. An additional support need can arise for any reason and be of short or long-term duration. Additional support may be required to overcome needs arising from: the learning environment; health or disability; family circumstances; or social and emotional factors. This includes exploring with the parents, children and young people reduced timetables and a flexible approach. Local authorities can ask other agencies (including social work services, health boards and Skills Development Scotland) for help in carrying out their duties under the Act. The Additional support for learning: statutory guidance 2017^[18] explains the duties on education authorities and other agencies to support children's and young people's learning. However, as set out in below, authorities have very limited legal duties in relation to children and young people with additional support needs who are home educated, as responsibility for the education of these children and young people rests completely with parents/carers. More information on accessing support for learning is set out in paragraphs 5.6 to 5.8 of this guidance.

Duty to provide efficient and suitable education

2.16 There is no statutory duty upon local authorities to 'monitor' ongoing home education provision, neither do His Majesty's Inspectorate of Education (HMI) have a remit to inspect home education settings. However, local authorities have a duty to take action where they are not satisfied that a parent/carer is providing efficient education suitable to their child's age, ability and aptitude. Parents should ensure that their children receive an education that enables them to achieve their full potential and prepares them for life in wider society. There is no definition of what is “efficient” and “suitable” education in domestic legislation but Article 29 of the UNCRC (set out at paragraph 2.4 above) does set out the purpose of education.

2.17 Paragraph 3.13 provides further information to consider in supporting the assessment of a suitable and efficient education. Paragraph 6.6 offers some suggested characteristics of efficient and suitable education. In addition, there are several examples of case law from England and Wales which may be of assistance:

Harrison & Harrison v Stevenson. Appeal 1981 Worcester Crown Court (unreported)

The Judge defined the outcomes of a suitable education as

1. to prepare the children for life in a modern civilised society; and

2. to enable them to achieve their full potential.

R v Secretary of State for Education, ex parte Talmud Torah Machzikei Hadass School Trust . Judicial review 1985, The Times, 12 April 1985

Mr Justice Woolf said: “Education is suitable if it primarily equips a child for life within the community of which he is a member, rather than the way of life in the wider country as a whole, as long as it does not foreclose the child's options in later years to adopt some other form of life if he wishes to do so”.

Goodred vs Portsmouth City Council, [2021] EWHC 3057 (Admin) Judicial Review 18 October 2021

69. Mr Justice Lane said: “there are four elements to the duty conferred by section 7 of the 1996 Act on parents; namely, to (i) cause the child to receive (ii) an efficient, (iii) full-time and (iv) suitable education, having regard to age, ability, aptitude and any relevant special educational needs. If any one of those elements is absent, the duty imposed by section 7 is not being discharged. I consider this to be an accurate analysis of the section 7 duty.

70. I also agree with Mr Cornwell that the duty is, plainly, objective in nature. The parent is not the ultimate arbiter of whether, for example, the education being received by the child is suitable. The requirement in section 9 for the Secretary of State and the local authority to have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents has no direct impact upon the section 7 duty.”

Equalities

2.18 Section 149 of the Equality Act 2010 places a general duty (known as the Public Sector Equality Duty (PSED)) on public authorities to have due regard to: eliminating discrimination, harassment, and victimisation; advancing equality of opportunity; and fostering good relations between persons who share a protected characteristic and those who do not. Local authorities must comply with the PSED in delivering their responsibilities for education, including in developing their home education policy and handling requests for consent to withdraw a child from education. Scottish Ministers can supplement the general duty by placing specific duties on Scottish public authorities. Consequently, the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012 were introduced to support Scottish public authorities to improve implementation of the PSED. Those duties require authorities to undertake a number of actions, including, for example, to: produce reports showing how equalities are being mainstreamed within the organisation; gather and use information about the recruitment, development and retention of employees with protected characteristics; assess the impact of proposed new or revised policy or practice and take account of the results in policy or practice development; and publish equal pay statements.

2.19 The Review of Implementation of Additional Support for Learning^[19] heard from a range of groups and individuals about their experience of additional support for learning. It made a number of recommendations which seek to improve the experiences of children and young people with additional support needs. While the scope of this review did not include home education, where access to local authority support is discretionary (see paragraphs 5.5 to 5.8), its findings and recommendations can promote the development of positive relationships between parents, children and local authorities. The overarching recommendation of the review is one of collaboration and joint working between parents, children and local authorities: "Children and young people must be listened to and involved in all decision making relating to additional support for learning. Co-creation and collaboration with children, young people and their families will support more coherent, inclusive and all-encompassing policy making, which improves implementation, impact and experience."^[20] Collaboration and involvement in the delivery of support and guidance for home educating families can promote positive relationships and enhanced communication between families and local authorities.

Divergent views between parents

2.20 Where there is disagreement between separated parents about a child's education, it will be primarily for parents to find agreement where that is possible in the circumstances. It is not for the local authority to try and resolve such disputes. The local authority may wish to remind both parents that their prime consideration should be the welfare of their child. It is generally better for the child that both parents are involved in the child’s life but there may be cases, such as when one parent has displayed violent or abusive behaviour, where this is not the position. The authority may also wish to signpost to mediation. However, mediation may not be appropriate when there has been domestic abuse, coercive behaviour, sexual violence or gender based violence. For more information please visit Striving for a safer Scotland. Ultimately, if separated parents are unable to agree on how their children should be brought up and educated, they may need to go to the civil courts although parents should be aware that this can be lengthy, expensive and stressful.”