Yesterday I started my read-through of this report of the JR, and today I will be continuing.
It's probably worth your while reading my previous summary, so you are aware of the facts of the case.
H Discussion
This is the meaty part of the report. This is when we get away from the facts, and look at the arguments and reasoning behind the decisions that have been made. It is from Paragraph 65 onwards.
There are four grounds that have been brought before the court:
- The LA puts the burden of proof on the HErs which is inconsistent with the statutory guidance.
- The LA will not accept just a report, even if there are no grounds for concern, and will proceed directly to NTS.
- The LA has a policy of issuing NTS without specifying the areas of concern.
- The LA has a policy of issuing NTS with no concerns and without suggesting the education is unsuitable.
"Mr Wolfe draws particular attention to the second bullet point in paragraph 5.4 of the Secretary of State's Elective Home Education guidance for local authorities. This bullet point says that where there were no previous concerns about the education being provided and no reason to think that it has changed, the local authority's annual contact with the parents would often be "very brief"."
"Section 436A(2) provides that, in exercising those functions, the local authority must have regard to any guidance given from time to time by the Secretary of State. I note that there is nothing in this subsection that restricts the duty to guidance that is specifically categorised as statutory in nature."
i.e. the judge is saying that because the guidance doesn't limit what LAs can ask for, they can whatever they want of parents and parents have to comply.
Paragraphs 84-86:
"As the correspondence between the defendant and the claimant make plain, the defendant began its enquiries with an open mind. It was only when faced with what it regarded as insufficient material from the claimant that the informal inquiries continued, leading to the impasse which then meant it appeared to the defendant that the children were not receiving a suitable education at home. As Mr Cornwell submits, the threshold at this point is a low one. It merely requires the defendant to take a view, as matters then stand, challengeable only on public law grounds.
The four paragraphs of "clarification" which the defendant inserted in its guidance in late 2020, and subsequently removed, have no material bearing on ground 1. Insofar as the language used indicates that, at the informal inquiries stage, a parent may have the task of providing evidence that shows a suitable education is being provided, the clarification accurately describe the statutory scheme, as explained by the Secretary of State's guidance. The same is true of the paragraph under "definition of suitable education", added in late 2020, which is to the same effect.
Ground 1 accordingly fails."
These paragraphs basically say that the HEr did not give enough information to the LA, therefore it's their own fault they were served NTS and SAO. The judge also says that whilst the "clarification" the LA used has no bearing on Ground 1, it is accurate and lawful.
Grounds 2 & 3
The LA has a policy of issuing NTS without specifying the areas of concern.
"The real ambit of ground 2 is that the claimant says the defendant has adopted a rigid stance, whereby it will reject reports provided by parents, in deciding whether a child is receiving suitable education at home. This amounts to an unlawful fettering of the defendant's discretion: R v Secretary of State for the Home Department, Ex p Venables [1997] 3 All ER 97"This contains lots of legalese, that I'll try and unpick (mainly because I've had to look up the meanings myself). 'Ambit' means 'line in the sand'. 'Fettering Discretion' means 'rather than exercising discretion, it fetters [binds] itself to someone else's views/policies'.
"Although it is true that, in his email of September 2020, Mr McIntyre said to the claimant that a "report alone, however detailed, is in my view, not going to be enough to enable us to be confident that suitable education is taking place", the defendant's actual position, repeated throughout the correspondence, is that "a written report alone, however detailed it may be, is unlikely to be sufficient to enable the Council to determine that suitable education is taking place" (see eg. the Chief Executive's letter of 20 January 2021; my emphasis)."
So because Portsmouth LA's policy uses the word "unlikely" it means there is the slimmest of possibilities that a report alone will be accepted, and therefore it isn't unlawful - according to the judge.
Paragraphs 92 and 93 basically say that because the LA's policy uses words like "might", "example" and "not an exhaustive list", the fact that it is asking for things that the government's policy specifically says are not required is not a problem at all.
Most worrying is Paragraph 94:
"
As can readily be seen, in the present case the defendant did not reject the claimant's reports because they were not in a particular form. The defendant's concerns were substantive ones. Despite the length of the claimant's reports, they were wholly assertive in nature. They contained nothing by way of actual work produced by the children. To take the example of work on To Kill a Mockingbird, which featured in submissions at the hearing, there was no material showing the degree of comprehension of the appellant's daughter concerning the novel; merely a series of statements from the claimant."
So the judge is saying that because the reports did not include examples of the children's work, the word of the parents' cannot be trusted. They are simply a series of words by the HEr and the presumption that the parents are lying about their children's activities and education is just.
To say that again, the judge is saying that parents cannot be trusted.
I have no words, other than disgust, tbh. If a parent is going to lie about this, they can easily fake 'work' by the children - whether it be searching on the internet, or writing things in their own handwriting. It's all bollox.
Paragraph 95 doesn't help the situation: "The affidavit, produced by the claimant and her husband, takes matters no further. It does not change the nature of the reports, to which the affidavit refers."
i.e. The judge is saying that it doesn't matter if the parents produce a legal document stating everything they have said is true, it (and they) still cannot be trusted.
Paragraph 96 says: "In any event, the defendant's policy properly takes account of the 2019 guidance documents of the Secretary of State; and there is no challenge to the lawfulness of these"
I don't know to which the "these" refers to in the previous sentence? If it means the lawfulness of the 2019 guidance, fine. However, if it means the lawfulness of Portsmouth LA's policy, then I think this was a big gap in the case, and should have been included.
In Paragraph 98, the judge quotes the DfE guidance: "2.12. However, many home-educating families do some of these, at least, by choice. Furthermore, is likely to be much easier for you 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."
The judge is basically saying that "paying attention to" isn't enough. You have to be able to document - which is more than what the guidance says. I don't think this is lawful, despite what the judge says. [Note: I repeat that I am not a lawyer, nor am I giving legal advice.]
Paragraph 99 goes further, and says that the LA "could" (which we know that LAs will take to mean "should") meet the child and/or examine the child's work. What about the rights of the child? What if they don't want their intellectual property shared? What if they have been traumatised at school, or have some other issue that means that when they meet new people in authority, they freeze? Or maybe they are defiant, or simply refuse to be a dancing monkey?
Paragraph 101 is telling. Despite saying repeatedly in different ways that parents cannot be trusted, the judge says "I see no reason not to take the defendant at its word." Parents cannot be trusted, but the LA always can. <eyeroll>
The judge says "The fact that, in the present case, the claimant's report has not been sufficient" - I'm not convinced that has been proved tbh. The fact is that the LA has claimed it is not sufficient, not that it actually is not sufficient. - my mistake, the LA can always be trusted. Silly me...
The judge also uses the term "home-schooled". I would have hoped that a judge in a home education case would have least learnt the basic terminology, but again, I'm clearly in the wrong for thinking that.
Still in paragraph 101, the judge says "Once a local authority has satisfied itself, by reference to the Secretary of State's guidance, that suitable education is actually being received by a child who is being home-schooled, a subsequent inquiry in respect of the same parent and child might be satisfactorily answered by production of a report along the lines of that produced by the claimant."
Paragraph 102 says "Finally under these grounds, I address the contention of the claimant that she is under no legal duty to respond to the initial or informal inquiries of the defendant."
Where was this claimed or contended? It's not in this document, that's for sure. The HEr has said that she has no legal duty to respond in the way the LA wishes - and that is true - but it is clear from the facts of the case that she has responded and repeatedly so!
Paragraph 103: "Grounds 2 and 3 accordingly fail."
Ground 4
The LA has a policy of issuing NTS with no concerns and without suggesting the education is unsuitable.
(Paragraphs 104 & 105)
This is a short section, because it seems the judge has got bored by now and cba.
Paragraph 105:
"Much of this has already been covered in the earlier grounds. I find that the defendant does not have a policy of issuing an NTS in circumstances where it has no concerns. The allegation of inconsistency with the legal framework and statutory guidance is unparticularised. It is in, any event, wrong for the reasons given in respect of Ground 1."
Conclusion
"Each of the claimant's grounds fails."
That's it. That is literally all it says in the conclusion section and we are at the end of the document.
So, my thoughts and musings...
- The judge seems to have no understanding of home education or learning without school.
- Portsmouth's policy is so clearly over the line, yet the judge seems to have judged whether or not the HEr has adhered to the LA's policy rather than the lawfulness of the policy itself.
- There seem to be some obvious contradictions, that the judge has either overlooked or not understood.
- The bias of the judge towards the LA and against the parents is astounding - though this case is about home education, that alone (ie that parents can't be trusted) should send shockwaves through all families and it could have huge ramifications.
