Table of Contents
- The Word "Arguably"
- A More Political Argument
- Parents' Rights
- Child's Right to Education
- UN Convention on Rights of Child
- Proactive Scrutiny vs Safety Net or Longstop
- Fourfold Foundation
- Section 437
- Systematic Instruction
- Civic Education
- Government Home Education Guidelines
- Monk and Badman
- Home Educated Children Are Not Pupils
- 2002 Contradictions Article
Most of this page was written in July 2015 when Daniel Monk's views mattered because he had been giving talks on home education and the law to groups of local authority officers responsible for dealing with home educating families and also spoke at the launch of the national body AEHEP at Westminster in February 2015. The Midlands Group appears to regard Daniel Monk's talks as "professional training", saying that "LA officers would prefer professional training [my emphasis] ...setting up of a national body will be vital; ability to invite Daniel Monk..." Link
Monk's page on the Birkbeck website says "He advises and works with a number of public agencies into issues relating to home-education, children's rights and criminal justice and sexuality." Link I am not a practising lawyer, but then neither is Daniel Monk. In the critique which follows I am using my background as a graduate in Philosophy and English to look at the standard of proof for Monk's assertions, and to scrutinise the language which he uses.
I don't disagree with Monk "because he is not a home educator". Rather, I take exception to his characterisation of home educators' beliefs; I disagree with his basic premise about "parents' rights" versus "children's rights"; and I question his attempt to change English law by introducing a new legal definition of "education" to include "systematic instruction" and "civic education."
I have difficulties with Monk's putting forward an interpretation of what the law "really means" or "must mean" or "intends" based on what he would like it to say. I also question the way Monk digs up old cases from the lower courts as supposed proof of - or justification for - his views. Old cases in the lower courts don't reveal what is "real law". Moreover, anything Monk says with regard to the United Nations Convention on the Rights of the Child is simply wishful thinking on his part since the UNCRC has not been incorporated into UK law.
The Word "Arguably"
Monk uses the word "arguably" a great deal in relation to home education. The effect of this is to introduce a contentious or inflammatory viewpoint in a seemingly detached and non-partisan way on the lines of "some people may say..." which Monk can then develop to an extreme or simplistic conclusion. Monk will then rein back with every appearance of moderation and balance, and can therefore appeal on two levels, both to the person who doesn't hear the word "arguably" and also to the person who does.
A person who employs the "some people may say" strategy is not owning to the view which he or she puts forward; arguably Monk employs this as a deliberate strategy, although there is no reason to believe this is the case.
In his 2004 article on home education, Monk uses the word "arguably" on pages 2, 9 (twice), 10, 15, 16, 17 (twice), and 18 (twice). A striking example occurs on page 9 when Monk says "the positive duty of the State to protect a child’s right to education could, arguably [my emphasis], be adequately performed by monitoring the content and nature of home education."
In his 2009 article on home education, Monk uses the word "arguably" on pages 1, 4, 6-7, 7, 12, 14, 15, 18-19, 19 (twice), 20, 22, 23-24, 25, 26, 27, 29 and 30; while word "arguable" occurs on page 16; the phrase "some would argue" appears on page 9; "it could be argued" is found twice on page 16; and "one can argue" occurs on page 30.
Examples from 2009 include "these provisions ... [of the UNCRC] not only legitimises but, arguably, requires at least some form of state monitoring of home education" [page 6-7]; "the duty [under s 436A to make arrangements to establish the identities of children not receiving suitable education otherwise than at school] not only legitimises investigation by an LA but, in contrast to section 437(1), arguably imposes a more positive obligation to act." [page 12]
A More Political Argument
In his 2004 article, Monk's ambitions are not limited to home education; he says he is also looking for "a more political argument that reaches faith and public schools too". By 2009, he appears to believe he may have found a way forward, saying "it is arguable that unregulated home education implicitly condones education that conflicts with attempts to foster national cohesion and democratic values... home educated children, 'cut off' or 'withdrawn' from mainstream society, will in effect be denied an education that respects their individual rights to develop their own views and values." [Monk 2009]
The 2009 article is very much of its time, looking forward to "new duties that one can argue require the introduction of compulsory registration". It was predictable that Monk might turn his attention to home education again in 2009 not only because of the Badman Review which was widely expected to lead to more regulation of home education, but also because the 2009 Guidance on Children Missing Education was interpreted by some - Monk included - as requiring greater investigation and monitoring of home education. Those elements of the 2009 CME Guidance which Monk adduced as proof of the need to monitor home education have now been dropped, but while Monk finds the new guidance "not as clear as before" it appears he considers the 2009 arguments too compelling simply to leave behind.
However, it must be remembered that as well as home education, Monk also takes a keen political interest in "faith and public schools too." To the extent that the Government maintains a hands-off approach in these areas, it is likely that it will do so in home education, and conversely whenever the Government ratchets up regulation in this area, some observers believe it is only be a matter of time before this affects home education.
In 2009 therefore, Monk could reasonably have anticipated that legislation introduced in 2008 to circumscribe private schools would inevitably have an impact on home education, and indeed there are several references to this in Monk's 2009 article. Of course, independent schools are fundamentally different from the home, so it is by no means inevitable that regulation in one area will lead to regulation in another. Moreover, the 2008 laws were never actually enacted, but by analogy this type of argument could conceivably be resuscitated or recycled with reference to recent "British Values" regulations.
Daniel Monk says home educating parents believe they have an absolute right to home educate. Monk says home educators are led astray by their interpretation of Article 2 of the First Protocol of the European Convention on Human Rights [the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions] and section 9 of the Education Act 1996 [pupils are to be educated in accordance with the wishes of their parents] (Monk 2004 page 6.)
Personally, I don't subscribe to this interpretation of Article 2 or of s 9. The reference to "pupils" in s 9 clearly indicates children in school, not children in their own home. Matters are complicated further by Monk himself seeming to misread section 9 as meaning that parents have to deliver "efficient" education to their own children.
Section 9 is actually about protecting the state from parents' demands, rather than imposing a duty on the state to interfere with what parents are doing. Parents of children with SEN will be well aware of this. Education lawyer David Wolfe points out that s 9 "doesn't force the local authority or special needs tribunal to give parents what they want, merely requires them to have regard to the general principle of "accordance with parents' wishes."
["In exercising or performing all their respective powers and duties under the Education Acts, the Secretary of State and local education authorities shall have regard to the general principle that pupils [my emphasis] are to be educated in accordance with the wishes of their parents, so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure." Reference]
(As an aside, there is another intepretation of s 9 - not made by Monk - which is equally far-fetched, and which says that about children are only allowed to be educated in accordance with their parents' wishes if the local authority deems the parents to be providing efficient education and training. This is completely at odds with the wording of the Act. There is no implication in s 9 that the state should be monitoring parents.
Monk says that the European Court has determined that the child's right to education takes precedence over any parental right, and he quotes several cases from Germany and Denmark to prove his point (Monk 2004 pages 7-8.) My view is that home education in England is not about the parents' right but the parents' duty, hence these cases from Germany and Denmark are beside the point, especially for those of us who didn't need to be convinced about "parents' rights" in the first place. As a general rule, citing cases from countries where the law on home education is vastly different from England is not going to be very helpful.
Child's Right to Education
By the time of his 2004 and 2009 articles on home education, Monk appears to have persuaded himself that English law gives children a "right to education" which has to be guarded and protected by the state which will monitor how parents exercise their duty to provide education." [Monk 2004] I don't agree that there is a positive right to education, and have set out my position here In England, the Minister made reference to The Belgian Linguistics case in rejecting calls for a free-standing "right to education", explaining that it might have perverse or unintended consequences particularly with regard to extending rights to minority forms of schooling which the state would then be obliged to fund.
However, only a few years earlier, Monk was writing about "the almost total absence of legal recognition of children's rights in education", even going so far as to say that "the lack of rights is not a mere oversight; attempts to rectify the position have been made on a number of occasions in Parliament and have been consistently rejected by both Conservative and Labour administrations" and observing that "there is a clear conflict between children's rights advocates and the Government."
Monk seeks to persuade the reader that the UN Convention on the Rights of the Child "not only legitimises but, arguably, requires at least some form of state monitoring of home education." Monk 2009
The UNRCRC has not been incorporated into UK law and since there is no positive "right to education" in English law, the UNCRC could not conceivably be used in an English court to compel or defend state monitoring of home education. Indeed, it works very well for Governments not to incorporate the UNCRC, as if it did so, public bodies would have to have regard to children’s human rights when making decisions on special needs, benefit cuts, youth detention, school exclusions, homelessness, and legal aid in family law proceedings to take just a few examples. (See CRAE Report 2014)
Proactive Scrutiny vs Safety Net or Longstop
By 2009 Monk is calling on "the state" to play an active role in children's rights and tells parents they "must acknowledge the legitimate interest of LAs, acting as the agents of the state, to monitor their provision." (Monk 2009 page 29). According to Monk's worldview, "agents of the state" should make it their business to evaluate home education provision and he says one conceivable interpretation of the law is that the LA can insist on an inspection if it is not satisfied (Monk 2009 pages 19-20)
Monk's idiosyncratic interpretation of the law implies an active scrutiny of each instance of home education which is quite different from the "safety net or longstop" of the fourfold foundation set out in parliament by Lord Adonis in the run-up to the Children Missing Education duty becoming law. (The most up to date version of CME Guidance -January 2015, reinstating the Elective Home Education Guidelines - may be found here, which supersedes Monk's last published commentary on CME Guidance dating back to January 2009.)
Fourfold Foundation: Lord Adonis
Lord Adonis wrote to Lord Judd as follows:
"This fourfold foundation has endured over a long period because it has, I think, certain inherent strengths. First, it recognises that the party with the keenest personal interest in securing the best available education for a child ordinarily is, or ought to be, the parent of the child. Depending on age, maturity and family background, the child may or not share that interest. But the parent has a statutory duty. Secondly, the regime recognises that for any child attending school it is that school through which the education provided by the state is in practice delivered. The relationship between school and pupil is close and personal: hence the restrictions on its interruption or termination. It is a relationship resembling, but for the want of consideration, a contractual relationship. But, thirdly, the regime recognises the need for a safety net or longstop to ensure that the education is not neglected of those who for any reason (whether 'illness, exclusion from school or otherwise) are not being educated at school in the ordinary way. It is plainly intended that every child of compulsory school age should receive appropriate education in one way if not another, and that responsibility rests in the last resort with the LEA."
In a sense, therefore, the fourfold foundation goes beyond what a free-standing right to education would provide, as it takes into account the different and complementary roles of parents, local authorities, the Secretary of State and governing bodies in the education of children.
Lord Lucas made reference to this in the House of Lords on January 30th 2015 Link
I disagree strongly with this interpretation of s 437. In my page on Educational Philosophies I point out that it is accepted in law that parents may have diverse philosophical convictions when it comes to their children's education, and also that - following section 7 of the Education Act 1996 - home education is "suitable" if it is suitable to the age, ability, aptitude and SEN of the particular child.
In English law, education is 'suitable' if it is suitable to the child's age ability aptitude and SEN. This is set out in section 7 of the Education Act 1996. Monk wants to change the legal definition and impose a requirement that home education "should include a systematic approach to the learning of basic skills of reading, writing and numeracy."
It is not clear whether Monk sees himself as asking for a change in the law. He says it is "the implication" of a decision of 'the Court of Appeal' which he also refers to as a 'high profile case (1982)'. It was actually Judge Roy Ward, in the Crown Court at Worcester in 1981 (on appeal from the magistrates' court) who offered his view on education and systematic instruction. Crown Court decisions are not binding or 'case law' [Reference]. The Harrison case didn't go to the Divisional Court until 1982. Monk seems to be claiming that Worcester courts judgement in 1981 (which he may be somehow linking to the Divisional Court in 1982) "arguably [my emphasis] legitimises the necessity of access to a child's work and evidence of progress."
The Harrison case keeps coming back to haunt home educators. It was raised by Graham Badman in 2009, and it has reappeared recently in a Briefing Paper prepared by the Midlands Local Authority Regional Home Education Forum. (Incidentally, I don't know why the Midlands paper sets the date at 1982 unless someone can convince me that the comments about the systematic approach to literacy and numeracy, and active supervision came from the Divisional Court in 1982 rather than the County Court in 1981, bearing in mind that I do already have the transcripts of both judgements.)
The Midlands Forum Briefing Paper says: "not clear what 'efficient' education is - better if quote full case law based on Harrison case what court deemed efficient: Harrison and Harrison versus Stevenson 1982: "While it was accepted that autonomous learning was recognised by educationalists as legitimate, the court added: In our judgement "education" demands at least an element of supervision; merely to allow a child to follow its own devices in the hope that it will acquire knowledge by imitation, experiment or experience in its own way and in its own good time is neither systematic nor instructive...such a course would not be education but, but at best, child minding." It elaborates and court held: "We regard the fundamental academic skills of writing, reading and arithmetic as fundamental to any education for life in the modern world - essential for communication, research or self-education. We should not in the ordinary case, regard a system of education as suitable for any child capable of learning such skills, if it failed to instill in the child the ability to read, write or cope with arithmetical problems, leaving it to time, chance and the inclination of the child to determine whether, if ever, the child ever achieved even elementary proficiency in these skills. Efficient education should include a systematic approach to learning the basic skills of reading, writing and numeracy. Legal position needs to spell out and not left to interpretation.
(NB Monk - and those who follow Monk - have confused "efficient" and "suitable". Judge Roy Ward said at Worcester Crown Court in the Harrison judgement that "a system in my judgment (and I so direct the Court) is “efficient” if it achieves what which it sets out to achieve. By that test, the evidence that the education of these children [the Harrisons] is “efficient” is all one way...We are satisfied that for these children, their manner of education has proved efficient." Moreover, this dictionary definition of "efficient" DOES appear in the Government Home Education Guidelines. In fact, what Monk is seeking is for the Government to import the 1981 lower court view of what constitutes a suitable education.)
Monk asserts that "if some form of 'civic education' is deemed an essential requirement for ‘efficient’ education...at a minimum it would require basic literacy." [Monk 2009]
Government Home Education Guidelines
Monk's attitude towards the Government's Home Education Guidelines for Local Authorities has changed over time. In his 2009 article he seems to believe that the 2007 Guidelines were on the way out, but by 2014 he appears resigned to the longevity of the Guidelines, and his position shifts towards suggesting that local authorities can simply ignore parts of the Guidelines they don't like, because the Guidelines aren't statutory.
Monk and Badman
Monk has been described by Graham Badman as "an expert in the legalities of home education." It is hard not to conclude that this means Graham Badman agrees with Monk's interpretation of the law.
In his 2009 article, Monk says that section 13A of the 1996 Education Act "imposes a
duty that explicitly refers to home educated children". S 13A states:
‘(1) A local education authority shall ensure that their functions relating to the
provision of education to which this section applies [my emphasis] are (so far as they are
capable of being so exercised) exercised by the authority with a view to—
(a) promoting high standards
(b) in the case of a local education authority in England, ensuring fair access to educational opportunity, and
(c) promoting the fulfilment by every child concerned of his educational potential.
(2) This section applies to education for-
(a) children of compulsory school age (whether at school or otherwise).’
I am very surprised at this reading of s 13A. Since elective home education is delivered by parents and not provided by the local authority, the "otherwise" education referred to here can only mean alternative education arranged and funded by the local authority. Ian Dowty explains as follows: "In relation to "education otherwise than at school", Ian looked at legal technicalities such as the concept of euisdem generis whereby if a law lists specific class of things and then refers to them in general, the general statements only apply to the same kind of things specifically listed. This is relevant to mentions of education "otherwise", which sometimes in context can mean ALL education otherwise than at a school and in other contexts will ONLY mean education arranged by the local authority ie NOT elective home education."
2002 Contradictions Article
In 2002 Daniel Monk published an article entitled "Children's rights in education - making sense of contradictions" drawing attention to "the almost total absence of legal recognition of children's rights in education" and "the distinctions between child law and education law." Monk's 2002 article states that "the lack of rights is not a mere oversight; attempts to rectify the position have been made on a number of occasions in Parliament and have been consistently rejected by both Conservative and Labour administrations" and saying that "there is a clear conflict between children's rights advocates and the Government."
Monk's 2002 article says there are three areas where the lack of children's rights in education law has been particularly criticised, namely child sexuality, exclusions, and special educational needs. In school exclusions the child is perceived as 'bad' and in need of punishment, whereas in SEN the child is perceived as 'ill' and in need of treatment.
Monk's 2002 article goes on to say that "the identification of anomalies is integral to the establishment of social order" and that "as the provision of state education was and arguably still is informed predominately by political, social and economic concerns and calculations, therefore the welfare of individual children may be a factor and an indirect consequence, but is not, and never has been, the paramount consideration."
Monk asks why are children only listened to in certain areas of child law and concludes that the answer may have far more to do with a desire to control or attend to the needs of problematic or disadvantaged children than with a principled belief in acknowledging children's autonomy. Monk says if 'rights in education' are to genuinely challenge the ways in which children are treated and perceived, what is required is a radical shift in political understandings of the purpose of education.
Nonetheless, Monk subsequently seeks to persuade his readership and his audience at training presentations that the home educated child does in fact have a 'right to education' which has to be guarded and protected by the state.
Monk 2002 (paywall)