This bill could harm children who come under the SEND umbrella. The Children’s Unhappiness Bill (as nicknamed by me) but known by the Government and officially as the Children’s Wellbeing and Schools Bill further erodes children’s right. It further erodes a parent’s responsibility to protect their child. 

It also, when you read through the bill’s accompanying documents, exposes an uncomfortable attitude towards both children who fall under the SEND umbrella, and towards their parents. 

It is already slightly more difficult to deregister your child to home educate, if they are currently on roll at a special school. However, the new bill’s wording will in effect stop a parent whose child happens to be on a special school roll deciding what is in their child’s best interests when they want to home educate. Home education is a first choice for some families. It is the best choice right now for others. It is also a last choice but necessary to protect a child for some families. 

I had originally thought the bill wording was a Typo. Particularly as the DFE know that local authorities do not consistently comply with Children and Families Act 2014 and The Special Educational Needs and Disability Regulations 2014 . They also know from the Tribunals annual statistics that LA’s regularly get it wrong on educational settings for children who come under the SEN umbrella. 

Knowing that if a child is in a special school in the first place, all the evidence shows that special school place was probably hard fought for by the parent. Why would you write into a bill anything that would undermine a parent with the skills to do so deciding to home educate. 

Turn to Clause 24 of the Children’s Wellbeing and Schools Bill. The bill informs us that a child attending a special school is considered a relevant child under Condition A. This is in clause 24 under s434A(3). The bill requires relevant children to have consent from the local authority to be deregistered from a special school to home education. This is not a surprise as so far it appears to be just moving information that is currently under regulations into the bill.

The bill initially appears to improve on the current regulations as at Clause 24 S434A(6)(a)  “must decide without undue delay whether to grant consent,”. This is an improvement on the current situation. That is a postcode lottery varying between consent in some local authorities being as quick as 1 day to a local authority taking up to 18 months but majority averaging around 5 weeks. 

That “and” at the end of Clause 24, S433A(6)(a) lets the bill down and Clause 24 S434A(6)(b) that instructs the local authority that they “must refuse consent if the local authority considers” . No requirement to recognise parental responsibility. No requirement to consider the child’s views. No requirement to consider that the parent has put in place their own suitable alternative arrangements. The bill mandates as it is a “must” that consent is refused if the local authority considers “that it would be in the child’s best interests to receive education by regular attendance at school” clause 24 s434A (6)(b)(i). The real-world effect will be parents being unable to deregister their child to home educate them if their child is on a special school roll.  

We already have supported families in the last three years where local authorities have used the local authority believes it is in the best interests argument. However, the current law does not support that in itself, and when the parent shows they have put in place their own suitable alternative arrangements, and the local authority is reminded they do not co-parent consent is then given. These home educating families where the children are now thriving outside of their previous special school, and progressing with positive outcomes and improved wellbeing would be trapped, under educated with poorer outcomes if this clause had already been law.

I had originally thought it a typo then I read the corresponding part of the Human Rights memorandum. On reading the relevant sections it occurred to me they may have intended to include the majority of children with EHCP’s just these pesky human rights meant they could not go as far as they wanted to. 

“157. With regards to the safeguarding measures and the differential treatment between different groups of potentially disabled children, this is justified because children in special schools tend to have greater needs and the consent mechanism enables local authorities to determine whether safeguarding issues will arise from the loss of the support that the child is receiving in school through their EHCP. It is also considered harder for parents of children with greater needs to provide a suitable education themselves and therefore it is important that the local authority assesses suitability before the child is removed from school. Requiring all children with EHCPs to obtain consent would mean that more children with likely less complex needs would need to obtain consent, which would constitute a greater interference with Article 14. Confining the consent mechanism to those children who are likely to have more complex needs is deemed to be a more proportionate way of meeting the safeguarding aim.”page 38 Human Rights Memorandum  

“147. The safeguarding measures also engage Article 14 because they allow for differential treatment between those in an analogous position on the basis that they create different requirements for children in special schools (who will need local authority consent to deregister) compared to children with Education Health and Care Plans (EHCP) (potentially with the same needs) in mainstream schools (who will not need local authority consent to deregister).” Page 36 Human rights memorandum 

It also occurred to me; I wonder what evidence base the opinion that judges’ parent’s capabilities come from. I would hope to fundamentally erode parental responsibility around education in such a significant way for a specific group that it is based on objective evidence. 

Michelle Zaher  31/12/2024 

Educational Freedom