Wednesday 17 November 2021

Portsmouth Judicial Review - Readthrough Part 1

 Yesterday we had the bad news that the home educators in Portsmouth had lost the Judicial Review.

A lot of people are now panicking about what this means, especially for unschoolers, but at the moment we need to be patient, let Portsmouth HErs regroup and talk to their solicitor in order to determine whether there are any next steps and what they mean.

In the meantime, I thought I'd do a readthrough of the report in case it is helpful to anyone.

(Note: I am not a lawyer.  I have not studied law.  This is not legal advice or assertions, but my own thoughts and feelings, which may be wrong if I haven't understood the nuances.) 

THIS is the link to the full 105 paragraphs of the report.  It is split into 

  • A Introduction; 
  • B Permission and Hearing; 
  • C Statutory Framework; 
  • D Secretary of State's Guidance 
    • (1) Children Missing Education 2016; 
    • (2) Elective Home Education Guidance to Local Authorities 2019;
    • (3) Elective Home Education Parents 2019;
  • E Defendant's Policy Guidance;
  • F Case Law;
  • G The Facts of the Present Case;
  • H Discussion;
  • Conclusion.
The Claiment is Christina Goodread (Portsmouth Home Educator).  Though she alone is named in this JR, she isn't the sole person to whom Portsmouth LA have acted unlawfully.  I wouldn't want any readers to mistakenly think that this is a case from one woman who has simply not been reasonable.

The Defendant is Portsmouth City Council (ie the LA).

And the Secretary of State is the Intervener - someone called to be neutral and give clarity about the situation.  [This may be one of those times I'm wrong.  Here's a link to a definition of an Intervener.]
What is interesting about the definition I've linked to, is that the Intervener shouldn't have a direct interest in the lawsuit (though they may have interest in the outcome).  I don't think the Secretary of State is neutral nor the best person for this role, but back to the text.

A Introduction
Basically, Portsmouth HErs are saying that their children are being suitably educated and Portsmouth LA are imposing an unlawful burden on them, because the LA's policy on EHE is unlawful.

B Permission and Hearing
I don't really understand this section tbh.  Something was refused, even though permission was at one point granted, because the claimant's reasoning had changed.
Then there's a section thanking the Secretary of State for getting involved.

C Statutory Framework
Long list of laws from the Education Act.  
Worth reading through them, if you haven't before, but there's no need for me to comment on it.

D Secretary of State's Guidance
This is a long list of quotes from the various guidances.  If you want to see my thoughts on each of them have a read of the following:
Response to EHE Guidance (LAs) 2019
Comparing HE Guidance for LAs and Parents

E Defendant's Policy Guidance
This is where it starts to get interesting for me, as I haven't read through Portsmouth's policy document before.

Paragraph 35: So, despite listing everything that is not required for HErs to do, Portsmouth LA says
"Furthermore, it is likely to be much easier for a parent to show that the education provided is suitable if attention has been paid to the breadth of the curriculum and its content, and the concepts of progress and assessment in relation to your child's ability."
So, the law and the guidance say you don't have to do this, but tough shit, we're going to make you do it anyway. As a reminder, this is the list that HErs are not required to do:
There are no legal requirements for you as parents educating a child at home to do any of the following:
    • acquire specific qualifications for the task
    • have premises equipped to any particular standard
    • aim for the child to acquire any specific qualifications
    • teach the National Curriculum
    • provide a 'broad and balanced' curriculum
    • make detailed lesson plans in advance
    • give formal lessons
    • mark work done by the child
    • formally assess progress, or set development objectives
    • reproduce school type peer group socialisation
    • match school-based, age-specific standards

Paragraph 36: Then in 2020, the LA added a section into its policy document, stating that the education should be "Broad", "Balanced", "Relevant" and "Differentiated".  That there should be a "curriculum" of some description being used.  All of which are unlawful and go against the guidance.

There is also a list of reasons given as examples of why an education may be deemed unsuitable, including "There is no or very limited examples of work submitted.", "There is no or very limited detail of how the child's progress is being monitored or examples of work to demonstrate relevant progression", and "There is no clear academic or time structure."  Again, all of which are unlawful and go against the guidance.

Paragraph 37: The LA has then 'clarified' by stating " a written report alone, however detailed it may be, should not be relied on in order to satisfy the council that suitable education is taking place." i.e. parents cannot be trusted to tell the truth.  We will not accept a written, signed document.

Paragraph 38:

"The defendant subsequently removed the "clarification", on the basis that it considered the passage was causing unnecessary confusion."

F Case Law
This paragraph goes through a previous example of case law: Phillips vs Brown 1980.  
This is the case where it says that if you don't give any evidence to the LA, they are in their right to assume that education is not taking place.

G The Facts of the Present Case
(Paragraphs 42-64)

H Discussion

At this point I'm going to stop, and I'll write my thoughts about the discussion in a separate blog post (Link to Part 2).
I hope that this has been clear enough for you to see why Portsmouth HErs are right to take this to JR and fight the LA.  It is appalling how this woman, and other HErs in Portsmouth have been treated.

#FairHearing4HomeEd #EducationalFreedom #WeStandWithPortsmouthHErs

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