Most of this page was written in 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.
I disagree with the basic premise about “parents’ rights” versus “children’s rights”; and I question Monk’s 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”.
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.
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, 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]
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 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.
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 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”.
Monk also takes a keen political interest in faith and public schools. 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.
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.)
However, 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.”
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.
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.”
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.
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)
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 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.
Monk’s attitude towards the Government’s Home Education Guidelines for Local Authorities changes over time. In his 2009 article he seems to believe that the 2007 Guidelines were on the way out, but by 2014 he appeared resigned to the longevity of the Guidelines, and his position shifted towards suggesting that local authorities could simply ignore parts of the Guidelines they don’t like, because the Guidelines weren’t statutory.
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 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 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).’
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.