Four things parents should know about the new education law

5 September 2019

Christian Legal Centre’s Roger Kiska explains what parents need to know about the new Relationships and Sex Education guidelines.

Parliament has introduced new regulations which amend the existing education laws creating an obligation on all schools across the nation from September 2020 to teach Relationships Education at the primary school level and Relationships and Sex Education (RSE) at the secondary school level. Here are four things parents should know about the new regulations.

1. The new statutory obligations

The Department for Education has introduced guidance for the new regulations where it outlines what “schools should do and sets out the legal duties with which schools must comply when teaching Relationships Education, Relationships and Sex Education (RSE) and Health Education.

It is very important to distinguish between what schools ‘must do’ and what schools ‘should do’ because the guidance goes far beyond what the statutes actually mandate must be taught. The amended Education Act 2002, Section 80A requires pupils to be taught the following: (i) the nature of marriage and civil partnership and their importance for family life and the bringing up of children, (ii) safety in forming and maintaining relationships, (iii) the characteristics of healthy relationships, and (iv) how relationships may affect physical and mental health and wellbeing. Importantly, according to Section 80A(2)(b), any material presented to pupils must be age appropriate and must have regard for the religious background of the pupils.

Any other items mentioned in the guidance, like the teaching of gender identity, is wholly ultra vires and therefore not strictly binding on schools. In such cases, schools can depart from the guidance if they have weighty reasons for doing so such as maintaining the integrity of the ethos of a Christian school.

2. Duty to consult

One of the most important things parents should know about the new regulations is that parents have an opportunity to shape what goes into the Relationships Education and RSE policies of their child’s school. According to Section 80B of the amended Education Act 2002 (and its counterpart in the Independent School Standards regulations), the governing body of a school must consult with parents when drafting their policies and they must have a  written statement of their policies which are to be made available to parents free of charge. Schools also should present to parents examples of the materials they will be using in lessons.

3. The new provisions on opt-outs may not be entirely legal

The new Regulations require that Relationships Education be taught in primary school without any right of withdrawal, even at a parent’s request. In secondary schools, parents may ask to withdraw their child from sex education, but not from relationships education. The new law also allows head teachers to refuse a withdrawal request if they feel there are exceptional reasons for doing so. However, neither the statute nor the guidance defines what those circumstances may be.

The question of the legality of these amendments lies in the conflict the new regulations have with the Human Rights Act 1998, and the obligation of schools to respect the right of parents to raise their children in accordance with their religious and philosophical convictions. Protocol 1, Article 2 of the European Convention on Human Rights (as read into our law through the 1998 Act) prohibits any form of ideological proselytism. It furthermore makes no distinction between subjects, which applies to any activity or lesson undertaken by a school. Proselytism is defined by the law as any teaching which imparts information that is not objective, critical and pluralistic.

Precisely stated, if material is being presented to your child that is not age appropriate or fails to take into account your Christian faith, you have a statutory right to object. If the material being presented to your child (whether in Relationships Education or RSE) is being done in a manner which lacks objectivity, is not critical and does not reflect a pluralism of views, under the Human Rights Act 1998, you have a right to withdraw your child from that portion of the lesson.

4. Christian Schools Can Remain Faithful to Their Ethos

Lastly, one of the more ambiguous elements of the new regulations is that they allow individual schools to create their own Relationships Education and RSE content, so long as they meet the four aforementioned statutory requirements, have due regard for the guidance and teach material which is both age appropriate and takes into account the religious background of the pupils.

On the one hand, it means schools with particularly ideological governors or head teachers have nearly an unfettered right to introduce LGBT campaigning materials into schools. In this regard, the Department for Education and Ofsted has been particularly unhelpful. No doubt questions of which material will be acceptable and which will not be will be worked out in the courts for years to come.

That being said, the good news is that Christian schools have a right to teach Relationships Education and RSE in a manner consistent with their ethos. Paragraph 21 of the guidance, for example, states that schools are free to teach these materials from a faith perspective. Similarly, in advice the Department for Education issued on the equality duty owed by schools, they make clear that it is not the government’s intention to undermine the ethos of any faith school. I would therefore suggest that now, more than ever, we need strong Christian schools.

Conclusion

The introduction of the new regulations has left parents across the country concerned and uncertain. We are always interested to hear examples of what is being taught in schools. If you are a parent facing uncertainty about your child’s education, or if you’re pleased with the way that your child is being taught in school, please get in touch.

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