Since the current statutory guidance on home education was issued in 2008, the legal landscape has evolved considerably, with human rights, data protection and equality laws increasingly impacting on public policy and service delivery.
Landmark legal rulings have also provided clarity on key principles, including crucial reaffirmation by the UK Supreme Court of the long-established threshold for state interference in family life. For the avoidance of doubt, it is not "wellbeing".
The Scottish government has no plans to amend primary legislation that affords parents equal choice between state schooling and "other means", but a "refresh" of its home-education guidance will shortly proceed. This presents an opportunity to address anomalies and ambiguities that have long frustrated home educators.
Home education: Home educators 'face an overtly hostile environment'
Before the pandemic, the Scottish Home Education Forum had reported a significant increase in families opting for home education and coined the term "home-eduphobia" to describe the hostility they routinely faced from services.
Obstructing home education
Following an investigation of local authorities’ home education policies and practices, our Home Truths report, published in March, highlighted the unnecessary, yet seemingly routine, gathering and sharing of personal information by councils when parents withdrew their children from state schools.
Since home educators’ data subject access requests had already uncovered catalogues of unlawfully obtained information, factual errors, hearsay, professional bias and outright contempt for those who objected to their rights being infringed, we embarked on a deeper dive into council policies.
Drawing on case studies and freedom of information responses, our Taking Local Authorities To Task report, published in October, exposed the routine collection and sharing of home educators’ personal information that far exceeded what was necessary or legally permissible. Many policies mandated such data processing, despite there being no lawful bases or safeguards to prevent overreach.
The discriminatory legal anomaly that means some parents need council consent to withdraw children from school remains especially troubling. Although consent may not be unreasonably withheld, it is frequently exploited to obstruct parents as arbiters of their children's best interests.
Since March, a few councils have delayed or refused consent for no justifiable reason. Others have simply told parents their "applications" are not a priority "due to Covid", and that staff have no time to carry out "necessary checks".
To be clear, home education guidance does not, and cannot lawfully, mandate data "fishing expeditions" unless compulsory measures are in place or evidence already exists of risk of significant detriment to a child when the parent initiates a withdrawal request.
The judgment on the Named Person approach unquestionably shook the foundations of GIRFEC (the Getting It Right for Every Child policy). Collecting and sharing personal data to profile and "remediate" the square pegs among us was found to breach our human rights.
Yet some local authorities still seek to rely on provisions in the Children and Young People Act 2014 that never came into force and are to be repealed. Others cite discredited advice from theiInformation commissioner that had to be withdrawn in 2016.
Home educators have already done their homework, while councils have simply run out of excuses. Hopefully, the Scottish government has been paying attention at the back.
Alison Preuss is coordinator of the Scottish Home Education Forum