Khyra Ishaq, a bright, happy girl from a chaotic but apparently loving family, had a perfect attendance record at school until the day she was suddenly withdrawn from lessons, along with some of her five siblings. Concerns had been raised - including claims that Khyra and her brother had been stealing food from classmates - but for the most part she seemed to be thriving at her Birmingham primary school. So her teachers were dismayed when, in December 2007, they received a note from her mother, Angela Gordon, informing them that she would be educated at home instead. Over the next five months, hidden from the world in conditions likened to a Victorian workhouse, no one in authority noticed as Khyra was repeatedly beaten and slowly starved to death. Aged seven when she died, she weighed just 2st 9lb and her emaciated body carried marks from more than 60 injuries.

A High Court judge who later ruled on the case said it was “beyond belief” that such a shocking and utterly preventable tragedy could be allowed to happen in a 21st-century city such as Birmingham. But, for years, many teaching and child protection professionals had been warning that such a death was not inconceivable at all - in fact, they say it was inevitable given the current state of the law surrounding home education. Impossible, contradictory regulations, they argue, prevent them from doing their jobs properly and mean some of society’s most vulnerable children are allowed to disappear from view.

Like other parents who make the same choice every week, all Angela Gordon had to do to take her children permanently out of the school system was announce that she was exercising her right to home educate. And there was little anyone could do to stop her.

The freedom to determine how a child is educated is cherished by tens of thousands of parents across the country who, for one reason or another, believe schools cannot provide what their families need. Undoubtedly, the great majority of home educators are caring, conscientious parents who dedicate themselves to providing the best for their offspring, and many of these children will get the kind of personalised one-to-one tuition no school could match. It is the minority that worries the professionals.

While Khyra’s case is an example of the very worst that can happen, schools and local authorities have long been warning that hundreds or perhaps thousands of other children are being abused and neglected, or simply not receiving any meaningful education, all under the cloak of parental choice.

Worryingly, it appears that, for a growing number of parents, elective home education is not a considered choice at all. Some parents are known to use it as a “loophole” to escape prosecution under strict truancy laws. And there is widespread anecdotal evidence that less scrupulous schools are encouraging parents to de-register troublesome pupils who might hurt their league table positions - in other words, exclusion by the back door. Both these recent developments increase fears that more and more children could be slipping through the net. Add into the mix a squeeze on local authority budgets and those on the front line of child protection will tell you their job is harder than it has ever been - and the risks are not going away.

Yet the Government has barely said a word on the subject since coming to power. What can be stopping it?

A clash of extremes

Currently, the state has no right to check what kind of education is on offer behind closed doors, and councils largely have to rely on parents’ goodwill to gather information. This, of course, is exactly how home educators want it to stay. Though a major Government review has confirmed the dangers inherent in the system, all recent attempts towards tighter regulation have crumbled in the face of sustained, highly organised campaigning by a very vocal home education lobby. Ministers who have tried to tackle the issue have quickly found themselves caught in a fundamental clash between the desire to protect children and parents who fiercely defend their right to choose what is best without the state intruding.

Certainly, in terms of the passions it arouses, it is one of the most controversial and politically sensitive subjects around, says Daniel Monk, a senior law lecturer at Birkbeck, London University, and a prominent author on home education. “On the one side you’ve got lots of people - and I’ve met them - who think home education is wrong: all children should go to school, it’s essential for child development to socialise with other children, it should be compulsory and parents should not have a right to choose,” he says. “At the other extreme you’ve got the pure parents’ rights argument that says the person best placed to understand a child is the parent and if you give too much power to the state that’s totalitarianism.

“In the middle you’ve got the position where most people agree home education should be permitted. The question - and this is the tricky bit - is how should it be regulated? It’s a highly controversial, politicised issue and there are a lot of strong feelings.”

The only thing anyone seems to agree on is that the number of electively home-educated children is rising. Home education has been called a “quiet revolution”. From tiny numbers a few decades ago, in England today around 20,000 electively home-educated children are known to the authorities. Many more have never registered at school and the true total is estimated at anywhere between 50,000 and 100,000.

Unlike in the US, where more than a million children are home-schooled and the movement is linked to the Christian right and the Tea Party, here it is much less highly politicised and parents’ motivations vary so widely that it is impossible to define them as a movement as such. Some home educators are deeply ideologically driven, rejecting structured education altogether and preferring “autonomous” or “self-directed learning” in which children are free to follow their interests at their own pace. Some are religiously motivated, wanting to restrict what their children are exposed to. Others believe strongly that the state should have no role in a child’s development and they are best off within the family (which is what happens in most cultures, according to Mr Monk - the Western notion that going to school is “normal” is very recent).

Most commonly, however, home educators are not remotely ideological - their decision is a practical response to a perceived failure of formal schools. This may take the form of inadequate provision for special needs such as autism. Children are also frequently taken out of school because of severe bullying, with their parents resolving to have a go themselves rather than subject them to further misery. But for all those with earnest intentions, some parents undoubtedly resort to it rashly with no plan for the education they have a legal responsibility to provide. And in those cases, teachers cannot help fearing for the child’s future.

One secondary headteacher contacted TES about a former pupil, Jamie, whose plight left the school’s staff in emotional turmoil. Jamie, who had learning difficulties, was plainly not well cared for at home and often arrived at school hungry and not properly dressed. The school fed and clothed him and “did our best to provide a safe haven”, the headteacher says. According to procedure, all the school’s concerns were flagged up to the boy’s social worker. The head believes it was this pressure that led Jamie’s mother to take him out of school last year.

“Jamie didn’t want to leave school,” the head says, “but he had no choice. We feel terrible not knowing where he is or what he’s doing. It makes a nonsense of child protection if all you have to do is take your child out of the institution.

“Jamie had a right to an education and he’s not getting that. I had teaching assistants coming to me in tears. They feel that if we hadn’t spoken, he would still be here, and they’re right. And you never want to put people in that situation when you’re dealing with child protection. They’ve got to feel they can disclose things because otherwise you start getting schools hiding things and then it just all goes horribly wrong.”

In theory, social services can take up where the school left off when a child is de-registered. But they can never match the daily contact teachers have with children, making it harder for signs of mistreatment to be spotted. And legally, though the law is often misunderstood, whether a child is safe and whether a child is receiving a suitable education are separate issues.

In extreme cases, authorities can issue a school-attendance order, forcing a child to attend lessons, but first they have to prove that child is not receiving a suitable education. Here, too, frontline professionals say they are hamstrung by confused regulations. Included in councils’ overarching responsibility to protect children is a specific duty to track down children missing out on education, those thought not to be being taught at all. (The law was brought in after the murder by her guardians of Victoria Climbie, who was never enrolled at school.) But the 2007 guidelines on elective home education from the then Department for Children, Schools and Families say local authorities cannot insist on seeing a child and have to rely on parents’ description of what they do - if those parents co-operate at all.

“The law is a mess,” says Mr Monk. “The legislation is so unclear that local authorities carry out what they think are their duties in very different ways. It varies hugely across the country. And that’s where the tension comes, where there’s uncertainty and confusion. We don’t have a national approach to home education.”

In 2009, the Labour government responded to concerns among child-protection agencies by asking Graham Badman, former director of children’s services in Kent, to write a review of elective home education. His report found there was indeed a danger that parents could use the law as a cover for abuse and neglect, and called for what would effectively be a licensing scheme for home educators, saying children should be sent back to school if certain requirements were not met. It said home-educated children were twice as likely as their peers to be known to social services and four times as likely to be unemployed when they became young adults.

Mr Badman’s recommendations were enthusiastically adopted by then education secretary Ed Balls and, later that year, the government proposed laws that would force home educators to register annually, with monitoring of educational progress. But the home-education lobby went into overdrive. Campaigners accused councils of empire-building, wanting more powers to interfere and control, forcing them to apply rigid timetables and curriculums with exams and assessment - in short, to replicate the type of school environment they have rejected as wrong for their children. Already, they complained, some local authorities routinely overstep their powers and often refuse to accept that alternative styles of education are valid.

Their campaign was taken up in Parliament by a number of libertarian MPs - it “appealed to the anti-nanny state instincts”, says Mr Monk - most notably Graham Stuart, who has since been elected chairman of the education select committee. “The long arm of the state should not aggregate to itself powers that belong to parents,” says Mr Stuart, who is also chair of the all-party group on home education. “They (home educators) are worried about being crushed under the state’s jackboot.”

A record number of petitions was received in the Commons in the wake of the Badman report. The Conservative front bench also opposed the change and the controversial clause was eventually dropped in the “wash-up” of bills before the general election. Michael Gove, Mr Ball’s shadow at the time, said the law would have unfairly “stigmatised” home educators as potential abusers.

Positions taken in opposition are always tested in government, and Mr Gove’s test came just weeks after the election, when the Khyra Ishaq serious case review was published, forcing the issue back into the spotlight. Earlier that year, Angela Gordon and her partner Junaid Abuhamza, who together inflicted a regime of beatings and denying the children food, had been imprisoned for manslaughter and child cruelty. Social workers were criticised in the review for missed opportunities to save Khyra from abuse - her school tried to pass its concerns about her welfare to the city council but these were not properly recorded or followed up.

However, the report’s authors had no doubt that the law on home education was partly to blame for Khyra’s death. Ms Gordon, the report revealed, had a “sound knowledge” of home-education law and deviously exploited it to hide what was going on. “There is no safeguard to ensure that a satisfactory education is being received by children and that their welfare is being safeguarded,” the review warned. “The current legislation enables parents to move their children from state education with minimal reasons and provides an opportunity to render young people virtually invisible. This is a particular advantage to parents who may wish to conceal abuse.

“Without doubt, the legislative armour ... enabled (Ms Gordon) to resist the advances of professional intervention and added to the perceived impotence of professionals to intervene.” The review called for changes to the law, giving social workers the power to speak with children to assess whether home education was really in their best interests.

Mr Gove, by then education secretary, said at the time that “lessons needed to be learned” from Khyra’s death and promised he would “see what changes need to be made to the existing arrangements”. More than 15 months on, that is still the Department for Education’s position - it says ministers “are aware of the strong views expressed by both home educators and local authorities and will take these into account in considering what, if any, changes need to be made, in due course”. No reforms are on the horizon.

Mr Monk says the reforms “did fit the New Labour agenda, which was much more about providing frameworks and checking outcomes”, but now there is little political will to tackle the issue. “Home education is seen as a marginal thing. It’s not seen as a social problem. There aren’t lots of home-educated children roaming the streets,” he explains.

Another consideration must be cost, estimated to be #163;350 million over 10 years to set up and run a national inspection and monitoring scheme. When home-educated children make up only around 1 per cent of the school-age population, critics say that money would be better spent on schools. And in any case, the argument goes, it is not certain it would save even one child - in Khyra’s case and all the other horror stories, home educators are keen to point out, the victims were known to social services. These were failures of individuals, not the system.

But that is to ignore the essential problem, insists Jenny Price, former general secretary and past president of the Association for Education Welfare Management (AEWM). She says we accept expensive and intrusive state controls when society deems them justified in the greater good. “Perhaps the view is they are such a small proportion it’s not worthwhile - it’s sledgehammers and nuts, isn’t it?” she says. “But any child who is at risk should be protected. People get very upset and anxious about the whole of the Criminal Records Bureau (CRB) process and say that’s intrusive and not helpful. Why do we have CRB? We have CRB because of what Ian Huntley (the school caretaker convicted of the murders of Holly Wells and Jessica Chapman) did. Sometimes we create big systems because, in our view, we think they are going to be the best mechanism to protect people. An awful lot of people get swept along with them.

“Our association has expressed our concerns about the lack of good regulation of home education. People at AEWM for some years thought it would take a death to bring a change in the regulations. Of course, the little girl in Birmingham did die, and the Government is still backing off from tackling this.”

Barry Sheerman MP, Graham Stuart’s Labour predecessor on the education select committee for a decade, has no doubt why nothing is being done. “I get the feeling the Government is reluctant to move because they’re frightened of the lobby,” he says. “It is a vociferous lobby. Not all of it, but on the more radical extremes of it they can make people’s lives absolute misery if they focus on a campaign against you. I know that Graham (Badman) was subjected to a great deal of harassment. (They were) chasing his family and all sorts of things.”

Mr Sheerman is firmly in favour of tighter controls. “Graham (Stuart), when he was on my committee, became very passionately a champion of home education, whereas the majority of the committee were very worried about the laxity of controls. If somebody said they were home educating, they more-or-less evaded any kind of supervision from the local authority.

“I still have very serious concerns about it. I don’t think they’ve gone away, and it’s the Government’s responsibility, in my view, to ensure the legislation protects every child in the country. I’m not sure the present situation provides that protection.

“I don’t mean a heavy-handed, thumping great central government fist. I mean a light pattern of regulation that lets people know where the children in our society are and whether they’re being educated in a sensible and serious way.”

Mr Stuart is, however, unmoved. “There is frequent misrepresentation of home education,” he told TES. “They (parents) are characterised wrongly ... There is a sense that they need to be regulated, that local authorities want to take the powers that parents have.

“There are kids who are let down when they are home educated, but there is no evidence that this proportion is any higher than in mainstream education.”

But Mrs Price says fears that councils want to force all home educators to stick to rigid curriculums are unfounded. Properly trained education welfare officers are sensitive to widely different styles of education and actually want to support parents in their chosen method, as they already do for thousands of home educators with good results. “For some children, school is not the right place and being educated at home can be hugely successful,” she says. “Where we have a concern is that sometimes there’s been a clash and people remove the children from school without a clear plan of what they’re going to do.”

Mrs Price says she knows of several examples where schools have encouraged the parents of pupils whose performance and attendance is poor to consider home education instead. The arrangement protects the school’s statistics and saves an exclusion being recorded against the child’s name in case they want to return to mainstream education later.

Another senior education welfare manager, speaking to TES on condition of anonymity, confirmed the practice was widespread. “If you asked any local authority, they would know of cases where that’s happened,” she says. “There are also cases where education welfare services might be involved and you’re at the point of looking at prosecution for non-attendance. Again, that’s an option parents have ... David Cameron said, after the riots (this summer), that we should withdraw benefits from parents whose children don’t go to school. Well, if you threaten that, the loophole would suggest they will withdraw them for elective home education and they’ll be on the streets 247. It’s ludicrous.”

John Chowcat, general secretary of children’s services union Aspect, says the issues raised in the Badman report are still current and cannot be swept to one side. “I recognise things have moved on politically in that we now have a Government that awards a diminished role to local authorities and is keen on cutting paperwork and control systems,” he says. “But Graham (Badman) was pretty clear about the risks involved and the need for the local authority to have the right machinery to keep a close eye and ensure protection of the children.

“I feel those issues remain with us. Graham was subjected to some very unfair and exaggerated criticism from the lobby. Some of the language was way over the top. There are some very exaggerated voices in this debate and it’s important there’s a cool and rational consideration of the practical concerns”

Heads and welfare chiefs are still hoping reform will come. But their fear is that, in the current political climate, it might take another national scandal like Khyra Ishaq before anyone takes notice.

A HISTORIC RIGHT

Parents have been allowed to teach their children at home ever since universal elementary schooling was introduced in the 19th century.

That right was enshrined in the landmark 1944 Education Act, which formally placed the responsibility on parents to ensure their children receive an education “either by regular attendance at school or otherwise”. This key phrase, giving parents the right to choose, has survived every legislative update since.

The law says children can be educated at home provided they get “an efficient full-time education” suitable to their age, ability, aptitude and any special needs.

But there is no definition of what is “suitable”, leaving wide scope for disagreement between home educators and local authorities.

In extreme cases, parents can be issued with a school attendance order forcing a child to attend school, but the local authority must first prove that the child is not receiving a suitable education.

NUMBER MYSTERY

Parents who home educate their children do not have to notify their local authority. Consequently, there are no official figures on the number being taught at home. However:

Around 20,000 children are registered with local authorities as being home educated

A report by Graham Badman for the Department for Children, Schools and Families in 2009 found the real number was likely to be “double that figure, if not more” and “possibly up to 80,000 children”.

Mr Badman asked local authorities how many of the home-educated children registered with them received unsatisfactory or non-existent teaching. Nationally, nearly 10 per cent of children educated at home were identified as not receiving an acceptable education.

LAs with the highest percentage of children not receiving an acceptable education

Stockton-on-Tees 45%

Leeds 24%

Wolverhampton 23%

TRUANCY LOOPHOLE

Jessica (not her real name) was a persistent “school refuser” with serious weight problems. She had failed to settle at primary school or in her first two years of secondary school.

Teachers tried to encourage her and monitor her health. But her poor attendance meant the local authority got involved and increasing pressure was put on the mother until, when it seemed she would be prosecuted, she announced Jessica would be educated at home and the case was dropped.

The irony is not lost on the girl’s headteacher that a law designed to crack down on truanting sometimes results in vulnerable children missing out on school.

The head told TES: “The whole of the last Government’s push on attendance means you do get parents who are caught between a rock and a hard place. They reach a point where they can see there is likely to be a court case and take the child out.

“If all you have to do to get round the fines is take them out of school, that’s what you do. It’s such an obvious loophole, I’m surprised more people don’t do it.”