Children’s Wellbeing and Schools Bill

Debate between Lord Wei and Baroness Smith of Malvern

Thursday 3rd July 2025 Lords Chamber

[Lord Wei (Con)]

I am sorry to interrupt the Minister, but is it not the case that if a determined local authority objects to home-schooling, they could start a process of investigating a family under these powers and therefore, technically, the family would be under investigation and could be refused—and all parents could theoretically be prevented from doing so?

[Baroness Smith of Malvern (Lab)]

No, and we will come to that in detail. The Section 47 provision, the child protection inquiries, would require evidence of significant harm to the child. It is not the case, as we have identified, that many parents who are home-educating would get anywhere near that sort of threshold. Nor would local authorities have any incentive to do that.

These provisions do not prohibit flexi-schooling arrangements. However, schools should agree to a flexi-schooling arrangement only in exceptional circumstances. We will update guidance to make this clear. In later groups we will be talking in more detail about the provisions around the consent process.

I turn to Amendment 286 tabled by the noble Lord, Lord Lucas. This is a probing amendment which would remove an exemption on the parental duty to provide information for registers. To be clear, the proposed exemption relates to children whose education is provided under alternative provision arrangements when special educational provision other than in schools is in place or where arrangements have been made by the proprietor of the school that the child is attending. These children may be in scope of the children not in school registers, but the local authority will already hold this information, so there is no need for a duty to provide information that rests with the parents in those cases.

Amendment 233A, tabled by my noble friend Lord Hacking, aims to push on what mandatory information local authority registers should contain. The only information required to be held on registers is that which is easily available to parents or obtainable by local authorities, and that is important for ascertaining the suitability of education and the safety of the child—such as the child’s name, their date of birth, address and details of education provided by the parent and others. We will talk on later groups about the way in which that information should be provided and the ease with which I hope it can be provided.

I turn now to Amendment 279, tabled by the noble Lord, Lord Nash, who made a strong case for the provisions in this legislation. His amendment aims to give local authorities the right to inspect the educational materials used by home educators and to view work that that child produces. Local authorities must consider a range of factors when assessing the suitability of a child’s education. One example of how they may conduct their inquiries into suitability is to request evidence of work samples. This position was confirmed in the Portsmouth judicial review case in 2021. If the local authority is not satisfied that the education is suitable based on the information received, it must usually serve a school attendance order, which requires the child to be enrolled at a school.

I turn to the Clause 31 stand part notice tabled by the noble Lord, Lord Lucas. I hope the noble Lord was satisfied by my first speech on this group but, to summarise succinctly, we need an effective registration system so that local authorities can identify all children not in school and ensure that they are receiving suitable education and are safe. This is what Clause 31 will achieve.

The stand part notice tabled by the noble Baroness, Lady Jones of Moulsecoomb, seeks to remove Clause 34 from the Bill. Clause 34 allows for statutory guidance to be provided to local authorities on how they should carry out their new duties in relation to the school attendance order process and children not in school registers. This guidance will provide local authorities with advice on how to exercise their new powers and responsibilities proportionately and consistently. For example, we would expect it to include further advice on how local authorities should request and conduct home visits.

As part of the implementation of the Bill, we will consult on the guidance to ensure that we hear from stakeholders that the measures will have an impact. It is necessary that the guidance is statutory to help ensure compliance with the advice within it. There will be considerable opportunity for further engagement on the details of that; the House will have the opportunity to consider it, because it will be subject to the affirmative resolution process.

The noble Baroness, Lady Fox, made points on why all children need to be included on registers. To reiterate, we agree that home education is not in itself a safeguarding risk, but it can mean that children slip under the radar of the services that are there to protect them. Our consent measures are a proportionate solution which, as I have said, focuses on the small but important group of children for whom there are concerns about actual or likely significant harm. We will further discuss these issues later. The registers are about helping local authorities to discharge their existing duties to ensure that children are receiving a safe and suitable education.

Finally, with respect to the points made by the noble Baroness, Lady Humphreys, about the child rights impact and the relationship with Wales, there is, to be clear, a child rights impact assessment produced by the Government for this piece of legislation, but Wales wanted to produce its own. That is the reason for the situation that the noble Baroness outlined.

For the reasons that I have outlined, and given the extensive discussions we have had as a forerunner for the further discussions that we will have, I hope that noble Lords will feel able not to press their amendments or stand part notices.

Children’s Wellbeing and Schools Bill

Debate between Lord Wei and Baroness Smith of Malvern

Thursday 3rd July 2025 Lords Chamber

[Baroness Smith of Malvern (Lab)]

The children who are subject to child protection inquiries and plans are among our most vulnerable and the children who attend special schools are likely to have the highest levels of need. It is necessary that local authority consent is sought in those scenarios to ensure that these children are safe and suitably educated.

Even then, Clause 30 does not mean that these eligible families will not be able to home-educate their children. We are simply requiring the local authority to take a closer look in those circumstances. It may, in any of those three categories, be wholly appropriate for those children to be educated at home, but it is also right, given the specific circumstances, that the local authority that has responsibility—or where those children live—looks at that case and gives consent for home education in those narrow categories of cases.

We want local authorities to know which children in their areas may be home-educated and to make an informed decision to determine what will be in the best interests of the child in those circumstances. Clause 30 is underpinned by a review process; I will return to that in a moment. Statutory guidance will also be published to help schools and local authorities to carry out their new duties consistently from authority to authority and in a proportionate way.

I turn to the specific amendments. Amendments 203A and 204, in the names of the noble Lords, Lord Wei and Lord Lucas, seek to remove the requirement for parents to obtain local authority consent to home-educate should their child attend a special school under arrangements of the local authority. The Government believe it is important to retain this requirement. We totally recognise that parents of children at special schools have their children’s best interests at heart, just like other parents. However, children in special schools often have very complex needs that would be difficult for their parents to provide for at home. The loss of the support the child receives in a special school may be a major upheaval in the child’s life. Clause 30 retains an additional check that there are no educational suitability issues resulting from the loss of this support and that home education would be in the child’s best interests. It is clear that this is a different nature of concern from that represented by Section 47 inquiries or a child protection plan.

Amendment 210, tabled by the noble Lord, Lord Lucas, wants to specify a timeframe for the home education consent decision to be made. I wholly share the noble Lord’s desire for decisions to be undertaken as quickly as possible. We think that the current wording in the clause, “without undue delay”, ensures as prompt a turnaround as possible. If we had an arbitrary timeline for this process—28 days, for example—that would imply that every decision was as straightforward as any other. Timings are likely to be different, depending on the circumstances of the child. By necessity, because these are children who already have other needs and requirements, the process could be complex and will involve multi-agency collaboration and information-sharing to reach a decision.

Amendment 215A seeks to ensure that local authorities offer parents an information session on home education as part of the consent process. I agree it is important that the decision to home-educate is an informed one. But the duty to secure a suitable education rests with the parent, not the local authority. With this in mind, requiring local authorities to offer mandatory information sessions would not be appropriate. It is parents who should be taking responsibility for researching their educational choices. Parents should carefully consider their responsibilities and the financial implications of home-educating before requesting permission to withdraw their child from school. We will ensure that the department’s relevant guidance provides key information that a parent needs to consider when contemplating whether to home-educate. Local authorities and schools can signpost to this should they become aware of parental intentions to home-educate.

Amendment 219, tabled by the noble Baroness, Lady Barran, seeks to require local authorities to provide a statement of reasons to parents when refusing a request for consent. As the noble Baroness suspected, it is the case that local authorities are already obliged to provide their rationale for such a decision. We intend to make this clear in the relevant statutory guidance, which will need to be updated so that relevant professionals know what is required of them.

Finally, Amendment 221, tabled by the noble Lord, Lord Lucas, looks to provide a tribunal appeals process as a review in the case of a local authority’s decision to refuse to grant permission to home-educate a child. We do not believe that this amendment is necessary because Clause 30 already provides for a review process. Parents who disagree with the local authority’s decision to grant or refuse permission to home-educate their child can refer the decision to the Secretary of State for review. They will carefully consider the full facts of the case. Having done so, the Secretary of State has the power to either uphold the local authority’s decision, to direct the local authority to grant consent or to refer the question back to the local authority for review.

[Lord Wei (Con)]

I am grateful to the Minister. I believe that this appeal process to the Secretary of State already exists. Clearly, it is a very difficult situation for the Secretary of State to be the tribunal for the parents, if the parents feel that the local authority or the Government have not been supportive of their desire to home-educate. I would be grateful if the Minister could let us know how many times, when a home-educated family has requested support from the Secretary of State to overturn a local authority decision, that has actually happened. According to the statistics I have, there has never been such an instance. I wonder whether, if this were to be tested in a court or by some other mechanism, this form of procedural appeal would not really muster the kind of belief that the Minister has. Might she reconsider looking into the various forms of appeal that we will propose in later groups of amendments, or indeed look again at the idea of a tribunal?

[Baroness Smith of Malvern (Lab)]

This legislation introduces the consent process. People have not gone through this process, with the specific, narrow categories of children and families for whom it applies. Does the noble Lord want another go?

[Lord Wei (Con)]

I am referring to other instances, which home-educated families have referenced, where they have written to the Secretary of State for Education —under the current regime, not the future one—and where no action has ever been taken in their favour. Perhaps we can discuss this in August.

[Baroness Smith of Malvern (Lab)]

Let us not talk about what will happen and when in terms of engagement with my officials. Just to be clear: as I said at the beginning of my remarks, that engagement will enable noble Lords to get an understanding of the way the Government intend to implement these provisions and to get some assurance around the processes that will be used. It will not be another opportunity for noble Lords who fundamentally oppose what the Government are doing—I am thinking of the noble Lord, who started his contribution by saying that he fundamentally opposes what we are trying to do here. I am not sure that the engagement will be particularly helpful for persuading, through officials, the Government to wholly change their approach to this. As I said, it is intended to look at the detail and to provide some assurance about how the processes will work.

I will reiterate the point I made previously. Clause 30 is introducing a consent mechanism and, specifically, a review process of that consent mechanism. Home-educating parents may well have written on other issues to the Secretary of State and been dissatisfied with the response that they received. However, that is different from the review process that is spelled out in legislation in Clause 30.

I turn to the points made by my noble friend Lady Morris. She is right. She asks questions that are the subject of amendments to be debated in later groups, but they are very reasonable. She asked about how much time a child would need to study with a provider for it to be reported, and how often and how quickly parents would need to update the details about that. Those are precisely the types of issues that would be subject to the further consultation around the regulations and guidance, including with home-educating parents and others, to ensure that we do that in a way that balances the burdens and requirements on parents, alongside ensuring that the local authority has the basic information that it needs to make the scheme work properly. In this area, there is considerable scope for consultation and engagement about how precisely that will work. I hope that answers my noble friend’s question and that the noble Lord, Lord Wei, will feel able to withdraw his amendment.

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[Lord Wei (Con)]

To clarify, I was in no way saying that men could not work with women in childbirth. I was trying to make a point about speaking as authoritatively on the process of giving birth as a man as if you were a woman. In no way would I want the Minister to interpret me as saying that one could not be a male midwife or anything like that, but, as some of us know, when in certain circles I have talked about something feeling like childbirth, I have quite rightly been told off, because I have never given birth. There is something about that lived experience that I am pointing to. I am not making the point that people cannot work in certain professional settings in that sense.

We are crossing over from professional expertise into lived experience, saying that a parent can or cannot raise their child and parent-educate. Even if you were to use the professional argument, I am not sure that having that determined by someone who may not have that experience—when, right now, even the professional in this context is not trained in the philosophies and the different nuances of home education—is quite right in this context.

[Baroness Smith of Malvern (Lab)]

I certainly think it is right that we should attempt to ensure that people with lived experience are a key part of all areas of policy. That is why, for example, I talked earlier about the home educators’ forum that the department has brought together to help to inform our work here and the guidance. The point that the noble Lord was making went well beyond that. The suggestion that you could not make a professional social work or education decision in this area unless you had lived experience would make this area wholly different from any other area that professionals were making decisions about, and that is the stumbling block for this amendment.

We have a workforce of trained, dedicated practitioners who understand and champion the needs of the children they work with across schools and children’s social care. These amendments, in effect, would exclude around 99% of the population and, of course, would assume that one professional’s experience of home education is reflective of all parents. Working Together guidance is clear which practitioners should be involved in safeguarding decision-making and the importance of including children and families in that as well. We are confident that the Bill measures, and wider children’s social care reform that strengthens the protection of children, will mean that local authorities can draw on a range of expertise when making decisions—and so they should.

Amendment 220 tabled by the noble Lord, Lord Lucas, and Amendment 224 tabled by the noble Baroness, Lady Jones, would allow a child not to attend school prior to receiving consent from the local authority. I say to the noble Baroness, Lady Jones, who was not here for the earlier parts of the debate—for which I do not condemn her—that the points she made about the very successful home education experience of the children she was talking about who are close to her has very much been reflected in the comments that other noble Lords made earlier. We are clear that there are many children for whom home education has been a very fulfilling and successful process, and there is nothing in this legislation that removes, for example, the right of parents to make that decision to educate their children at home.

With these consent provisions, however—and in wanting to ensure that if a child is being educated at home, they are at least seen and understood to be being educated elsewhere than in school—we want to make sure that every child is seen. That is the expression that we were using earlier, and that is what we are aiming to do here. Also with respect to the consent provisions, we are concerned about those children for whom there might be particular reasons for a local authority to look carefully at the decision to grant consent by virtue of them being subject to a Section 47 inquiry, under a child protection plan or requiring the specific facilities of a special school.

For many children, a school is a protective environment and a means of offering essential support. I know that the noble Lord and the noble Baroness share our desire to reduce the risk of children falling through gaps and potentially going missing. It is therefore important that a child continues to attend school until a local authority has determined the consent request. Removing a child before this could subject them to unsuitable education or increase the risk of harm. I am sure that the noble Baroness could envisage a situation where, for legitimate reasons, a Section 47 inquiry is instituted where there are concerns about a child being at risk of very significant harm and—I am afraid that we have seen examples of this—a parent, thinking that this would be a way of avoiding it, decides at that point that they want to remove their child from school. In those circumstances, I do not think that any of us would want that child to be removed from what may well be the protective environment of a school before the decision had been made about consent.

For all children who are not subject to the consent process, which will be the vast majority of children whose parents want to home-educate them, all we are expecting is that the parent notifies the school that they want to remove their child from the roll and that the school has the opportunity to check, therefore, whether they fall within the criteria of a child for whom consent would be necessary or whether they are subject to a school attendance order. It would not be unreasonable to expect a child to carry on attending school while that relatively straightforward administrative check was made.

Amendment 222, also tabled by the noble Lord, Lord Lucas, would require consent decisions to be revisited sooner than six months after the previous request when new evidence becomes available or the child has been disadvantaged by the decision. This six-month timeframe is proportionate and is provided to reduce multiple requests regarding the same child. There will be situations where it may be appropriate for the local authority to consider applications sooner—for example, if there has been a substantial change in the child’s circumstances. A local authority can do this under the clause as drafted, if it so wishes. I am sure that the noble Lord could also envisage a situation where a parent who was unhappy about the consent decision made by a local authority expected the decision to be revisited perhaps every week. That is the reason for setting this timeframe.

Amendment 223 tabled by the noble Lord, Lord Wei, is about establishing an independent ombudsman. I understand the theme that is developing here about independent review capacity. Notwithstanding that, the Government do not believe that it is necessary. I note that the noble Lord, Lord Lucas, uses almost every opportunity to push his tribunal suggestion. I am interested in whether the proposition now is that we should have both a tribunal and an ombudsman in these cases. Of course it is right that there should be a process for referring local authority decisions that parents are not satisfied with; however, it should be uncomplicated. It is right that the final decision should rest with the Secretary of State, or Welsh Ministers, who will fully and objectively consider the merits of the case.

Amendment 225, tabled by the noble Lord, Lord Lucas, would remove the definition of the “relevant local authority” that is responsible for making a home education consent decision. For children subject to a child protection inquiry or plan, the local authority where a child lives is responsible for making the consent decision. They will have the information needed to make informed decisions and should therefore determine consent. For children in special schools, who are not also subject to child protection processes, consent is needed from the local authority that maintains the plan, just as is the case under existing legislation. This new subsection provides legal clarity for parents, schools and local authorities.

Amendment 403, tabled by the noble Lord, Lord Wei, requests emergency court hearings for parents where a local authority seeks to remove, or removes, a child from their parents due to concerns arising from home education. To reiterate, the Children Act 1989 is clear that the threshold for care proceedings is significant harm. Home education as a singular factor would not reach the threshold for care proceedings. Child protection concerns about a home-educated child must be addressed through the same process as any other child facing harm. This includes parents’ rights to challenge decisions about the removal of a child into care.

Finally, Amendment 418, tabled by the noble Lord, Lord Wei, would require local authorities to refer individuals who file false or malicious allegations against home-educating parents, who then may be subject to civil penalties. There is a concern that this could deter valid concerns about home-educated children being reported, potentially leaving children at risk. Local authorities have robust processes in place to identify whether a child is suffering, or likely to suffer, harm and appropriately respond to malicious allegations, regardless of a child’s educational status.

I said earlier that it would not only be in the case of home-educated children that a local authority might have to make a decision about whether a complaint about a child’s parents was well founded or malicious. Home-educating parents have the same rights as other parents. Families can seek support from the local authority or police advice if intentional false reports are being made against them.

For the reasons I have outlined, I hope that noble Lords will feel able not to press their amendments.

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[Lord Wei (Con)]

To build on that, if you had a local authority officer with not much experience of home education—given that that is apparently not available—who is shown suitable education arrangements by the parent planning to take their child into home education, then that first new sub-paragraph could allow them still to override those arrangements, which they have agreed are suitable, by saying that they think it would be best if the child attended a school. How do we deal with that precise situation which she has said could happen? Do we not need to work this out so that our wonderful local authority officials are not confused when reading this guidance and say, “Well, I can still override the parents because I think it is right that they stay in school, because that is in their best interests”?

[Baroness Smith of Malvern (Lab)]

That is what I was saying. You could envisage circumstances in which there is a child on a child protection plan, notwithstanding that there might be suitable education, where the protective role of being in school would be in that child’s best interests and being away from the school might be against them, regardless of what the other education provision might be. Let us not forget that this would be a consideration only for children for whom there are child protection concerns or for children in special schools, where, to be fair, it would more likely be about the appropriateness of the education, but could be about the other support available for a child that would not be available in other circumstances, notwithstanding the question of education, because of their needs that required them to be put into the special school in the first place.

[Lord Wei (Con)]

I can fully appreciate that, given the scope here, if there was a safeguarding concern then one might want to pursue the route the Minister is talking about as the officer in question is trying to make that decision. However, the way that this is worded, even if the parents or family subject to Section 47 have found a way to provide suitable education, gives the officer the room to say, “I am concerned about the safety of the child”, when it is more that they do not like the education being provided.