Children’s Wellbeing and Schools Bill
Lord Frost Excerpts(2 days, 15 hours ago)
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Lord Frost
Member's explanatory statement
This is a probing amendment seeking to establish how these provisions would relate to flexischooling children, that is, children who are not full-time in school with the agreement of their school and therefore remain on the school roll.
Lord Frost (Con)
My Lords, I rise to support Amendments 202C and 227A, in my name and the name of my noble friend Lord Wei. We are now, at last, beginning consideration of the large number of amendments on home education. It is a pleasure and an honour to be able to kick off what I think is going to be a lengthy and important discussion.
The proposals on home education are an important part of this Bill and have perhaps got less attention than other aspects of it. I guess that is because most people have been to school and not many people have any direct experience of home education. As a result, it is a sector that does work well but is often misunderstood. I hope that by the end of our discussions, however long they take, and our consideration of these amendments, noble Lords and especially the Government will have a clearer understanding of some of the difficulties home educators have to deal with.
This group contains a slightly miscellaneous, heterogeneous collection of amendments. Some of them touch on ground that we will probably consider more extensively and debate at greater length later, so for now I will focus on the two amendments standing in my name that are on a specific but very specialised aspect of the general issue of home education: flexi-schooling. I will make a couple of more general remarks at the end on the broader aspects of home education, as the question of whether Clause 31 should stand part of the Bill is formally in this group.
Baroness Smith of Malvern (Lab)
If I have understood the noble Lord’s first point, it relates to whether the information-sharing provisions within this legislation will support the ability of local authorities to be able to track, so that they can ensure that children do not fall through the gaps. Of course that would be the case, but that in itself does not remove the requirement to ensure that, as he said, local authorities have information about where all children are receiving their education. The noble Lord is right that the intention of these clauses is that, obviously, if a child is receiving their education in school, it is clear and they are seen, but if they are not receiving their education in school for whatever reason, it is important that they are seen. The intention is that those are the children who should be included in the register of children not in school.
I take the noble Lord’s point about flexi-schooling, but it is possible to envisage, as I suggested, models of flexi-schooling where children are receiving part of their schooling at a school where they are registered and on the roll but are not receiving all of their schooling there. Therefore, the explanation of why they should be included in the register of children not in school is in order to have sight of the other part of their schooling. The other point that I made was that that would not necessarily require parents to provide additional information, because it may well be that the information about where that education provision is happening is known by the school. There is a range of different flexi-schooling arrangements and it is important that, in line with the helpful principle that the noble Lord set out at the beginning, we are able to see children and to see the education that they are receiving.
Lord Frost (Con)
My Lords, I thank all noble Lords who have spoken in this discussion. I thank the noble Baroness, Lady Barran, for her support on the flexi-schooling amendments and the Minister for her response and her comprehensive statement earlier in the debate, which was helpful. The brief discussion that we have just had on flexi-schooling illustrates exactly the sort of point that is perhaps better discussed in one of those August meetings than now on the Floor of your Lordships’ House.
I will not detain noble Lords further. We have had a much fuller debate than perhaps I expected and I might have spoken at greater length at the start if I had known quite how large a debate we would have. I take this opportunity nevertheless to associate myself with the comments of my noble friends Lord Lucas and Lord Wei on the principles of this discussion.
Children’s Wellbeing and Schools Bill
Lord Frost Excerpts(2 days, 15 hours ago)
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Baroness Barran (Con)
My Lords, I will speak to my Amendment 207. Ever the optimist, I hope the Government will take it seriously and bring it back on Report with a “g” in front of it.
The amendment has two parts: the first extends the right of a local authority to withhold consent to home education for a child or their family who is in receipt of services under Section 17 of the Children Act 1989; the second extends this to children who have ever been classified as a child in need of protection under Section 47 of the Act. To be clear, both parts would give local authorities just the discretion to withhold consent on a case-by-case basis. Clearly, I am not proposing a blanket refusal, but, as drafted, the Government’s position is not altogether clear, although I suspect that the noble Baroness will tell me that my drafting is not altogether clear either.
All children who are in special schools would now be within scope, as we debated in the earlier group, of the local authority’s right to withhold consent, but not those under Section 17 where there are safeguarding or neglect concerns. That just feels the wrong way round in terms of priorities. I appreciate that my drafting could focus more narrowly on those children defined under Section 17 of the Act to focus on safeguarding and neglect, but it is curious not to focus on those children. Unlike my noble friends, I do not think it is easy to get either Section 47 or Section 17 status and I worry that the bar is too high with just the current Section 47.
On the inclusion of children who have ever been subject to a Section 47 child protection plan, we talked earlier about the tragic case of Sara Sharif. The Minister in the other place said that
“we cannot say for sure what might have made a difference, but we will learn lessons from the future … local child safeguarding practice review”.—[Official Report, Commons, Children's Wellbeing and Schools Bill Committee, 30/1/25; col. 297.]
I think I am right in saying that Sara Sharif had been put on the child protection register at birth. She came off the register and, as we know, was removed from school and died, tragically. Without the changes in my amendment, the one thing we can be sure of is that the proposed law as drafted would not have made any difference to her.
I know that both Ministers on the Front Bench want to get this right; I am just trying to state the reality that if a child has ever been considered to be vulnerable enough to be subject not to a Section 47 investigation but to a child protection plan at any point in their short life then that is a massive red flag that needs to be removed before consenting for them to be educated at home. I respect the probing Amendments 205 and 206 in the name of my noble friend Lord Lucas, but I support the Government’s approach to giving local authorities the power to withhold consent in cases involving child protection.
Lord Frost (Con)
I want to underline the points made by my noble friend Lord Lucas on Amendments 205 and 206, which I have also put my name to. Section 47 is obviously a very difficult area for the reasons the noble Baroness, Lady Barran, just underlined, and it obviously needs to be taken seriously. At the same time, as my noble friend Lord Lucas said, a debate needs to be had about where we are drawing the borderline, whether there are areas where Section 47 need not be an automatic barrier to home education, whether there needs to be a further process, or whether the process is different in some cases compared with to others. At the moment, it is a very broad and straightforward yes or no test. As we know, as has been said and no doubt will be said again, there is evidence that this Section 47 process can be hijacked in certain circumstances and in certain kinds of relationships just to disrupt, cause trouble or make life more difficult, so we have to be sensitive to that.
I certainly think that, again, it is something perhaps better explored in these famous August discussions than necessarily in the detail now, but it is important not to take a completely black and white view on this. I will not labour the point, but I also think it underlines the need to have a proper appeal process and tribunal to take the sensitivities of the particular cases properly into account.
Lord Frost (Con)
My Lords, I have similar doubts and concerns about Amendment 211—or rather the problem it is designed to deal with—to my noble friend Lord Lucas. To elaborate, the principle that parents have the primary responsibility to provide education for children has been in statutes of various forms for the best part of 150 years and is currently in Section 7 of the 1996 Act. There is a qualification to that, for reasons of cost and efficiency, but no qualification for anything else. My noble friend Lord Lucas is right to say that this is the first time we have seen this very important principle qualified. The fact that it is done almost in passing and, as the noble Lord, Lord Crisp, said, in a bit of a muddle, makes one wonder how much thought has been given to this, and whether indeed the intention is to go back on this very long-standing principle or not. It does not seem to have been very clearly thought through.
At the moment, we have a provision that says that local authorities “must refuse consent” to the subset of children who are caught by these new provisions if they think that home education is not in the best interests of those children. That is most egregious for children in special educational schools but also for the Section 47 part of the definition, which, as we have been discussing, potentially has quite a low threshold.
My questions to the Minister are these. Is it intended with this provision to overturn that very long-standing principle? If it is not, can she explain why it is not and why this draft does not do that? Is it worth thinking a bit harder about the drafting of this section and, as the noble Lord, Lord Crisp, said, substituting some sort of objective positive test rather than this very broad and novel “best interests” test?
Lord Wei (Con)
My Lords, I will speak to Amendment 212 and the related amendment to Clause 30. Taken together, these amendments aim to restore vital balance and proportion to the question of whether a parent may withdraw their child from school. They would place evidence, not mere suspicion, at the heart of decisions to profoundly shape children’s lives, reaffirming that it is parents who are the primary guardians of their child’s welfare, unless proven otherwise.
As others have mentioned, Amendment 212 addresses the critical flaw in the Bill: trapping children in harmful environments by allowing local authorities to withhold consent for withdrawal without first producing clear, documented evidence of a standard sufficient to satisfy courts that such a withdrawal would cause greater harm. This is not some radical departure; it simply restates the core principle of the Children Act 1989 that the welfare of the child and the authority of the parents to act in their child’s best interest must be paramount.
From the groups that we have discussed so far, one of the concerns I have is that although we must recognise the sterling efforts of local authority officials, the department and the Minister, we must not always presume that in every case the state knows best. Mistakes are made, and from what I have heard so far I am worried that there is no real consciousness that there could be mistakes that would warrant either a tribunal or an ombudsman, and, in this case, no recognition that schools can potentially be a cause of harm as well—for example, if children are being groomed or exploited at school. Why is there this presumption that the parent must prove to the official that the alternative to school that they are about to provide will be safer, when in some cases they may be trying to get their child out of a harmful environment—for example, that particular school?
This is a real issue. Scandals we have had in the past. Horizon, and even Rotherham—if I dare to mention that in this place—were based on the assumption that the state clearly understands what is going on and is not making any mistakes, that nobody is overlooking anything, and that the state is wise and therefore everything it does is right and cannot be challenged, except when we find out years later that there have been mistakes and problems. The amendments that many of us are proposing are trying—certainly I am with this one and others—to address that assumption and create some safeguards.
The related, equally essential amendment to Clause 30 rightly distinguishes between the mere existence of a Section 47 investigation and its actual outcome. It seeks to ensure that local authorities may refuse consent only if their inquiries under Section 47 have led them to conclude that the child is suffering or likely to suffer significant harm.
I want to echo similar points made by others in this group that there is a real troubling shift towards the state deciding what is in the best interest of the child, based not on neglect or the criteria that we have relied on in the past for state intervention but on deciding what is in the best interest of the child educationally and holistically. How can this possibly be justified?
Even with Section 47, we are talking about suspicion as the threshold, so we may have this running debate which we may need to resolve when we sit down with officials. I have documented proof—real testimony—of officials who are suspicious, not recognising that there is harm being done in school to a child, of parents who want to home-educate. They say that the parents are going to harm the child, using cases such as the Sharif case and others to justify this intervention. This has caused officials to behave in ways that put them in a position of extreme power, without any protections or appeals.
The state should override parental rights only when there is evidence of significant harm, not because the state believes that it has a better view of what is in the best interest of the child over the parent. In re B (A Child) 2009, the Supreme Court was unequivocal. As Lord Kerr memorably put it, the state does not become the parent. It is justified in interfering only where a child is suffering, or is likely to suffer, significant harm. That is the litmus test.
For many families this is not theoretical; it is painfully real. I have been sent countless accounts, too often dismissed as anecdotal, of children enduring conditions in school that no safeguarding regime should tolerate. The 2021 Ofsted review on sexual harassment found that many girls routinely experience peer sexual abuse in school. The Women and Equalities Committee has documented similar risks. Children with autism, sensory processing difficulties and anxiety disorders frequently find the mainstream classroom overwhelming, not through any failing by parents but through systemic failure.
One mother recounted that her autistic child’s school-triggered anxiety caused seizures three to four times a week, which dropped to once every six months after she was withdrawn. Another spoke of her son vomiting every morning, paralysed by dread. Yet another mother described home education as not a lifestyle choice but “a safety net that saved my child’s life”. A 2023 study in the British Medical Journal found that adolescent mental health measurably improves during school holidays and worsens during school term time. This is not mere coincidence but evidence that for some children, school environments simply do not work.