The Children’s Unhappiness Bill (as nicknamed by me) but known by the Government and officially as the Children’s Wellbeing and Schools Bill . It contains a lot to think about. One particular area of interest is the Children Not in School Register. Specifically, Clause 25.  

Clause 25 of this bill appears to be incomplete. It leaves most of the details to secondary legislation. What is contained in the bill itself is scary enough for many styles of home education. Secondary legislation processes have significantly less scrutiny than primary legislation processes. So, what are they trying to hide. If they have nothing to hide, why is it not in the bill to be properly scrutinised? 

I looked at the delegated powers document to see the justifications. This led to more questions about what they are trying to hide. Looking at the grid on pages 57 and 58, it appears clause 25 requires the level of detail of 8 different regulations, which amongst those also includes the power to make even more regulations. Why not just make Clause 25 fit for purpose in the first place? 

So let’s delve into this document for why they must hide the detail 

“Justification for the power 110. The second and third categories of eligibility are intended mainly to cover children who are flexi-schooled and those who are in certain kinds of alternative provision or only attend further education part time. However, it could, without further provision, also capture children who have relatively short or minor absences, such as visits to museums or for pupils to receive lessons off-site. This could cause children to move into and out of eligibility rapidly and unpredictably, having the adverse effect of creating unnecessary administrative work for parents and local authorities”  pg 23 

Reading that surely, they need to draft the bill better. Not leave it to secondary legislation. Clause 25 itself should have appropriate amendments within the bill then everyone, parents, local authorities, activity providers, venues, services and children know who will be subject to this. That clearly does not appear to be appropriate to be left for a later point after the Bill may become enacted. That also sounds like it could if it is not written correctly be both resource and financially burdensome. Therefore, another reason to be properly scrutinised. 

“Justification for the procedure 112. The Department has determined that the situations to be removed from scope using this power will be technical and should only impact a low number of parents whose children may have flexi-schooling arrangements or are placed in particular kinds of alternative provision. The intention is to use this power to ensure children are not unintentionally brought in scope when they should not be, for example where a school has made arrangements for pupils to receive swimming lessons at their local leisure centre.”pg 23  

Reading that if the bill as drafted could unintentionally include school children on swimming lessons, again that clearly indicates clause 25 itself is not fit for purpose as drafted. 

“Justification for the power 118. Many local authorities already voluntarily maintain a register of children not in school or electively home educated, developed based on local needs. Therefore, initially, there may only be a need to issue guidelines to local authorities on how registers should be maintained. However, to ensure the accuracy of data, the Department considers that the option needs to be available for the Secretary of State to be able to prescribe processes in relation to the maintenance and upkeep of registers.” pg 25 

So why is Clause 25 in the bill needed in the first place.  

“Justification for the power 124. This duty on out of school providers is necessary to ensure the registration system is as effective as possible in safeguarding children from harm and ensuring children are not missing education or attending illegal schools. It is also needed so that local authorities can ensure the accuracy of their registers. The Department considers that there should be a threshold at which this duty should apply, to ensure that it only targets those providers most likely to be used by parents for a substantial proportion of their elective home education.”pg 26 

This is a detail that is necessary for services, activity providers, parents and children to be aware of with a substantial lead time. It is also a strange justification to hide the threshold as their is already a definition for illegal schools and definitions for children missing education and associated guidance and regulations so why not just set the threshold in clause 25 itself so business’s can plan and parents can make informed decisions. 

We move on to a regulation that will need to exist because for some reason unbeknownst to me they do not want to transparently include the threshold in clause 25. 

“ Since the threshold is to be set in regulations, it would be challenging and inappropriate for exceptions to be set out in the Act itself as those exceptions are dependent on the threshold. Moreover, as the threshold may be adjusted from time to time, exceptions may also need to be adjusted as a result.” pg 27 

If they have nothing to hide, put the thresholds and the main exceptions into clause 25 itself. Then out of school providers would transparently know if they would or would not be within scope of clause 25. 

Clause 25 itself is already excessively intrusive as written without so much being hidden from sight in secondary legislation and associated guidance. 

Clause 25 will already require home educated children (and some others) but primarily home educated children to be on a register that  

“ must contain the following information in respect of a child registered in it 

(a) the child’s name, date of birth and home address,  

(b) the name and home address of each parent of the child,  

(c) the name of each parent who is providing education to that child,  

(d) the amount of time that the child spends receiving education from each parent of the child, 

(e) if the child receives education from a person other than their parent—  

(i) the names and addresses of any individuals and organisations involved in providing that education, 

(ii) a description of the type of each provider named under sub-paragraph (i), 

(iii) the postal address of each place where that education is provided (where different from the address in sub-paragraph (i)) or the website or email address of the provider if that education is provided virtually, 

(iv) the total amount of time that the child spends receiving that education and the amount of time the child spends receiving that education without any parent of the child being actively involved in the tuition or supervision of the child.”  page 49 s436C of Clause 25 Children’s Wellbeing and Schools Bill

There clearly has not been any consideration of the article 8 rights of those extended family members and friends that may be part of a child’s holistic home education. The drafting of this also demonstrates they either did not involve people who do home educate, or if they did, they asked the wrong questions or ignored what they said. 

Michelle Zaher 30/12/24 

Educational Freedom