‘stare decisis et non quieta movere’
‘stand by what has been decided and do not unsettle the established’
You probably do not need to know this bit, but for home educators, everything is a learning opportunity!
The basic rule is that a court must follow the precedents from a higher court, but they are not bound to follow decisions from courts lower in the hierarchy. It looks like this:
European Court of Justice (watch this space!)
Supreme Court (formerly House of Lords)
Court of Appeal
All other courts (County, Crown, Magistrates, tribunals – these have no power to create precedents)
There are three types of precedent:
- Original precedent, which is created when a higher court hears a case that involves, for instance, a law and/or a set of facts that have never come before the courts. Original precedent guides Courts in making future decisions in similar cases.
- Binding precedent. This is a bit misleading as it is binding on future judges, but only where the facts of the original case are sufficiently similar to those that appear in new cases. It is created by the higher court and can be overturned by a higher court if there is a change in law or even in social norms.
- Persuasive precedent, which is actually not always very persuasive and is the stuff of lawyer’s arguments. These precedents may influence a judge’s decision if the legal principles and reasoning given in the previous decision is relevant to the present case. Persuasive precedent can include rulings from lower courts, but they would be highly unlikely to persuade anything but a lower court.
You may be surprised to note that the first precedent set for home education was as long ago as 1911 in Bevan v Shears, 1911 2KB 936. A bye-law made under the Elementary Education Act 1870, s74 provided ‘that the parent of every child of not less than five years or more than fourteen shall cause such child to attend school unless there be a reasonable excuse for non-attendance’ and that the following reason should be reasonable excuse:
‘that the child is under efficient instruction in some other manner‘
This may surprise some home educators, as a great many do not know that home education has been lawful throughout most of our history in England and Wales. This case found that education can be efficient when it is not the same as education in schools, paving the way for parents to tailor their provision to their child.
The next precedent is R v Surrey Quarter Sessions Appeals Committee, ex p Tweedie (1963) 61 LGR 464, 107 Sol Jo 555 and this is often abused by local authorities. What the Court found in this case was that
‘although as a general rule an education authority should not, as a matter of policy, insist on inspection in the homes as the only method of satisfying themselves that children were receiving efficient full time education, there were cases in which the authority was entitled to insist on such inspection’.
Some authorities cite this case to demand a meeting with the parent, but the Tweedie case was truly exceptional in that: ‘(the) mother who (was) paralysed or, at any rate, (was) in a wheelchair, a father (who was) in ill health, six children of compulsory school age’ and a previous set of court proceedings during which the mother agreed that she would in future accept home inspection.
If a local authority does cite this case, you can ask what in your circumstances is truly exceptional.
It was another 17 years before a further precedent was created in 1980, in Harrison & Harrison V Stevenson, Worcester Crown Court 1981. This case gave us the definition of an efficient education in that an education is
‘efficient if it achieves that which it sets out to achieve’
The Court also found that the requirement of what is now the Education Act 1996 s7 is ‘fulfilled if, and only if, the education is such as:
‘to prepare the children for life in modern civilized society and to enable them to achieve their full potential’.
Home educators often suggest that there are no set subjects, but Harrison tells us that the court regards
‘the fundamental academic skills of writing, reading, and arithmetic as fundamental to any education for life in the modern world’
This does not mean that home educated children must have formal lessons however, as
‘that does not mean, I repeat, that we think that the children should be subject to conventional schooling, or that the whole balance of their present education should be changed to one of academic emphasis. Regard must be had to their disability; they should not be made to feel undue pressure or urgency which could undermine the benefits which have apparently accrued from their present upbringing’.
The next precedent is Regina v Secretary of State for Education and Science Ex parte Talmud Torah Machzikei Hadass School Trust 1985, which gives us the definition of a suitable education:
‘Education provided by a school catering for the special provision and characteristics of a minority sect within the community would be suitable within the meaning of sections 71 and 76 of the Education Act 1944 if it primarily equipped a child for life within the community of which he was a member rather than the way of life in the country as a whole as long as it did not foreclose the child’s option in later years to adopt some other form of life [if] he wished to do so’.
There are a great many other precedents which may have bearing on home educating families, for example, a public body such as the local authority must not apply a block policy, but must look at each case on a case by case (individual) basis. Local authorities are apt to do this regularly. An example of precedent reflecting this finding is: Walumba Lumba and Kadian Mighty v Secretary of State for the Home Department  UKSC 12. On appeal from:  EWCA Civ 111.
Home educating parents may also wish to note that any decision made by a local authority must also be made in line with the principles of administrative law. This means a decision must be:
- Lawful: it complies with education and other law, including human rights and equality law, such as the Human Rights Act 1998 and the Equality Act 2010
- Proportionate: Proportionality on the part of a public body requires that only the minimum action necessary must be taken. A court would ask itself whether the measure which is being taken is legitimate and necessary. A measure cannot meet the test of proportionality if the aim (always supposing that the aim itself is legitimate) could be achieved by a less onerous measure.
Public bodies must also be mindful of the 7 Principles of Public Life: Selflessness, integrity, objectivity, accountability, openness, honesty and leadership.
It is truly saddening that only 20 of 151 local authorities in England have published policies which are wholly compliant with legislation and guidance.
Even more concerning, is that there are local authorities who are so very far in breach of current legislation and guidance as to be acting in a way that justifies legal proceedings against them.
Knowing your legal rights is extremely important.