2. Legislative position
This section sets out the legislation relevant to home education. It covers the statutory nature of this guidance, a child's right to an education, the parent's responsibility for providing that education, the need for consent to withdraw from a public school, and a local authority's responsibility to satisfy itself that suitable and efficient education is being provided. It also provides references to case law and international law that are of relevance to home education. Most of the topics covered are expanded upon in later sections of this guidance.
2.1 This guidance
Standards in Scotland's Schools etc Act 2000 - Section 14
Guidance to education authorities as to home education. The Scottish Ministers may issue guidance as to the circumstances in which parents may choose to educate their children at home; and education authorities shall have regard to any such guidance.
This guidance is issued under Section 14 of the Standards in Scotland's Schools etc Act 2000. This means that education authorities must have regard to the guidance.
2.2 The right to an education
Standards in Scotland's Schools etc Act 2000 - Sections 1 and 2
1. It shall be the right of every child of school age to be provided with school education by, or by virtue of arrangements made, or entered into, by, an education authority.
2. (1) Where school education is provided to a child or young person by, or by virtue of arrangements made, or entered into, by, an education authority it shall be the duty of the authority to secure that the education is directed to the development of the personality, talents and mental and physical abilities of the child or young person to their fullest potential.
2. (2) In carrying out their duty under this section, an education authority shall have due regard, so far as is reasonably practicable, to the views (if there is a wish to express them) of the child or young person in decisions that significantly affect that child or young person, taking account of the child or young person's age and maturity.
2.3 Parents are responsible for providing their child with an education
Education (Scotland) Act 1980 - Section 30
(1) It shall be the duty of the parent of every child of school age to provide efficient education for him suitable to his age, ability and aptitude either by causing him to attend a public school regularly or by other means.
(2) Section 1 of the Standards in Scotland's Schools etc. Act 2000 (right of child to be provided with school education by, or by virtue of arrangements made by, an education authority) is without prejudice to the choice afforded a parent by subsection (1) above.
Education (Scotland) Act 1980 - Section 135 (1)
The definition of a parent 'includes guardian and any person who is liable to maintain or has parental responsibilities (within the meaning of Section 1(3) of the Children (Scotland) Act 1995) in relation to, or has care of a child or young person'.
While most parents fulfil their responsibility to provide education by sending their children to school, others choose to provide home-based education. Home education is a right conditional upon the parents providing an efficient education suitable to the age, ability and aptitude of the child, and choosing this option does not in itself require permission. A child is defined as being of school age ( i.e. education must be being provided) if he or she has attained the age of 5 years but has not yet attained the age of 16 years. However, the exact rules surrounding school starting and leaving dates are complex and are set out in sections 32 and 33 respectively of the Education (Scotland) Act 1980. For example, the rules surrounding leaving dates may mean that a child who has already attained the age of sixteen may still require consent to be withdrawn from school. 1
2.4 Duties placed on local authorities
Education (Scotland) Act 1980 - Section 28(1)
In the exercise and performance of their powers and duties under this Act, the Secretary of State 2 and education authorities shall have regard to the general principle that, so far as is compatible with the provision of suitable instruction and training and the avoidance of unreasonable public expenditure, pupils are to be educated in accordance with the wishes of their parents.
Education (Scotland) Act 1980 - Section 35
(1) Where a child of school age who has attended a public school on one or more occasions fails without reasonable excuse to attend regularly at the said school, then, unless the education authority have consented to the withdrawal of the child from the school (which consent shall not be unreasonably withheld), his parent shall be guilty of an offence against this section.
Education (Scotland) Act 1980 - Section 37(1)
(1) Where a child of school age has not attended a public school in the area in which his parent is residing, or has attended such a school and has been withdrawn therefrom with the consent of, or excluded by, the education authority, then, if the authority are not satisfied that the parent is providing efficient education for him suitable to his age, ability and aptitude, it shall be the duty of the authority to serve a notice on the parent requiring him within such time as may be specified in the notice (not being less than seven or more than fourteen days from the service thereof) either -
(a) to appear (with or without the child) before the authority and give such information as the authority may require regarding the means, if any, he has adopted for providing education, or
(b) in the option of the parent, to give such information to the authority in writing.
Education (Scotland) Act 1980 - Section 37(2)
If a parent on whom a notice has been served in pursuance of subsection (1) above fails to satisfy the authority that he is providing efficient education for the child suitable to his age, ability and aptitude or that there is a reasonable excuse for his failure to do so, the authority shall make an attendance order in respect of the child in accordance with the provisions of section 38 of this Act.
In all their educational responsibilities, local authorities should have regard to the views of parents and the decisions that they make in relation to their child's education. Authorities should seek to support parents in the choices that they make by offering advice, clear and accurate information and resources where feasible.
Section 35 and Section 37 of the Education (Scotland) Act 1980 are relevant in relation to home education. Section 35 stipulates that the consent of the authority is required for a child to be withdrawn from a public school. Section 37 requires an authority to take action where they are not satisfied that an efficient and suitable education is being provided.
2.5 Efficient and suitable education
There is no definition of efficient and suitable education in statute law, however, there are two examples of case law from England and Wales which may be of assistance in the interpretation of this:
Harrison & Harrison v Stevenson. Appeal 1981 Worcester Crown Court (unreported)
The Judge defined the outcomes of a suitable education as
1. to prepare the children for life in a modern civilised society; and
2. to enable them to achieve their full potential
R v Secretary of State for Education, ex parte Talmud Torah Machzikei Hadass School Trust. Judicial review 1985, The Times, 12 April 1985
Mr Justice Woolf said: 'Education is suitable if it primarily equips a child for life within the community of which he is a member, rather than the way of life in the wider country as a whole, as long as it does not foreclose the child's options in later years to adopt some other form of life if he wishes to do so.
2.6 International Law
European Convention on Human Rights - Article 2 of Protocol 1
No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching is in conformity with their own religious and philosophical convictions.
UN Convention on the Rights of the Child - Article 12 3
Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
UN Convention on the Rights of the Child - Article 28
Parties recognise the right of the child to education.
International law gives children a right to education. This right is enshrined in Scots law in Sections 1 and 2 of the Standards in Scotland's Schools etc Act 2000 and qualified by Section 30 (2) of the Education Scotland Act 1980.