The law

Disclaimer – we’re not lawyers, and what follows below is our best understanding of things. Nobody should rely on anything here and if you’re in any doubt about anything, speak to a lawyer. Nothing here should be taken as legal advice.

This page was extensively revised on 17 February 2014 to update the information on school starting age, and to add information on home education, placing requests, and sex and religious education.

uksi_19801287_enIf our experience is anything you go by, you shouldn’t trust officials or even many solicitors to have a clear understanding of the legislative framework for education. What follows is a basic outline of some of the more important aspects.

It should be of help to most parents having difficulty being heard by their school and council.

This page isn’t concerned with home education – for good information on that see the Scottish home educator’s website Schoolhouse, or the Scottish Government’s guidance on home education.

Importantly, it also isn’t about additional support needs, where parents’ rights are much broader and better defined. I don’t know enough about this area to say which websites or publications would be best, but there are several organisations who can give advice – see here for a list that includes most if not all. You could also take a look at the relevant pages on Parentzone, and at Enquire.

This information is about everything else in education law.

There are two main pieces of primary legislation here: the Education (Scotland) Act 1980, and the Standards in Scotland’s Schools Act 2000.

Starting and attending school

In Scotland, children are not required to start school until after their fifth birthday. The school starting is commonly misunderstood, including by schools and councils, and for more detailed information you should read our page on deferrals.

Local authorities make school available for children who are four but their birthday is no later than the end of February. You don’t have to send them to school that year, you can delay school entry for any child until the August after they have turned five. If their birth month is January or February and you choose to defer, you have a right to an additional year in nursery. If the birth month is September to December you can apply for an additional year in nursery but it is at the council’s discretion. It is practice that if it is granted, it will be funded by the local authority.

Other than that, your child must be in education from the August following their fifth birthday, though there’s no statutory definition of “education”. So normally they have to be at school or home educated, but education could include things like a private nursery or tutoring.

Section 1(5) of the 1980 Act says:

 “‘school education’ means progressive education appropriate to the requirements of pupils, regard being had to the age, ability and aptitude of such pupils, and includes—

(i) activities in schools and classes ([such schools and classes being] in this Act called “nursery schools” and “nursery classes”), being activities of a kind suitable in the ordinary case for pupils who are under school age;”

Lots of other things could constitute education too, and the council’s room for manoeuvre is quite wide.

You have an absolute right to home education. You only need to seek consent from the local authority if you are withdrawing a child of school age who has already started primary or secondary school. You don’t need consent to home educate of your child has finished primary school but not yet started secondary school. You don’t even need to inform your local authority if you wish to home educate and your child hasn’t yet started primary school. If you do need to seek consent, they’re not allowed to unreasonably withhold it. For full information see the Schoolhouse website.

Placing Requests

Parents have a right to a place in any school they wish, provided that there is space in the school. Where the school is oversubscribed, the local authority must follow certain rules.

There is useful information on your rights to choose the school your child attends on the Scottish Government website and on the Citizens Advice Bureau Scotland website.

The law on placing requests can be found in Section 28 of the Education (Scotland) Act 1980, and it is worth noting that these provisions have been heavily revised over the years, most recently and notably by Sections 43 and 44 of the Standards in Scotland’s Schools etc. Act 2000.

The interpretation of the law on placing requests has been shaped by cases brought by parents, so if your own situation is at all unclear, you should consult a solicitor. I intend to write more about placing requests soon.

General rights

So for the parent of a child who is at school, who doesn’t have additional support needs, and who is  unhappy with an aspect of their child’s schooling, what are their rights?

Section 28(1) of the Education (Scotland) Act 1980 says:

“In the exercise and performance of their powers and duties under this Act, the Secretary of State 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.”

To be clear, the Education Authorities in Scotland are the councils. So this section of the legislation requires councils to pay serious attention to the wishes of parents and, where reasonable, agree to parental requests. At the very least a council would have to give a good reason for refusing something that a parent wants.

Section 2(1) of the Standards in Scotland’s Schools etc. Act 2000 says:

“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.”

And there’s more. The Scottish Schools (Parental Involvement) Act 2006 reformed the legislation governing school boards, but has a broader focus in that it also extends to parents’ involvement in their own child’s education.

It  strengthens the duties placed on education authorities by the 2000 Act with regard to parents’ involvement in their own child’s school education and in school education generally, places a duty on education authorities to give advice and information to parents on the education of their own child, and requires education authorities to have a complaints procedure covering how they carry out their functions under the Act.

The Scottish Government has produced guidance on this Act for schools, local authorities and parent councils, and a handy leaflet for parents too. More information can be found at Education Scotland’s Parentzone website.

Rights over what your child is taught

You have legal authority over two things that your child can be taught about: religion and sex.

Sex education

Sex education is covered in “relationships, sexual health and parenthood education” (RSHP). Section 56 of the Standards in Scotland’s Schools etc. Act 2000 says that the Scottish Ministers may issue guidance on sex education. That guidance is currently in Circular 2/2001, and paragraph 13 sets out the conditions for withdrawing your child from sex education. You can only withdraw them from the specific programmes on sex education, and your child is not exempt from other aspects of sex education that could come up elsewhere in the curriculum, such as in life sciences or even in connection with literature.

The school are expected to explain to you the purposes of the programme and encourage you to see participation as positive and constructive for your child, and they have to take your child’s views into account. But in the end, if you insist, the school must make alternative positive educational provision.

The Scottish Government are reviewing this guidance to reflect the new Curriculum for Excellence, and have published a draft for comment (but not as a formal consultation). The new version of the guidance doesn’t change the position on a parent’s right to withdraw their child from sex education,.

Religion

How your child is educated on religion depends on whether or not they attend a denominational school. In non-denominational schools children are taught Religious and Moral Education (RME) and also get religious observance (RO). Here, RO and RME are generally very separate – RME is done in class, and in secondary schools it is delivered by teachers of that subject, while RO is typically covered in assemblies.

In denominational schools, children are taught Religious Education (RE) and the line between RE and RO is much more blurred. Prayers can be taken by a teacher in any class, for instance, and RE will include some RO.

RME/RE is one of the eight statutory core subjects and must be taught in all schools, up to and including sixth year in secondary schools.

A parent’s right to withdraw their child from both RME/RE and RO is enshrined in Section 9 of the Education (Scotland) Act 1980, which is the Conscience Clause. It says:

“Every public school, every grant-aided school and every self-governing school shall be open to pupils of all denominations, and any pupil may be withdrawn by his parents from any instruction in religious subjects and from any religious observance in any such school; and no pupil shall in any such school be placed at any disadvantage with respect to the secular instruction given therein by reason of the denomination to which such pupil or his parents belong, or by reason of his being withdrawn from any instruction in religious subjects.”

What this means is that parents may withdraw their child from RME/RE and/or RO, regardless of whether the school is denominational or non-denominational. It also means that a denominational school, such as a Roman Catholic school, cannot refuse to admit a child based on religious beliefs.  

The Scottish Government produces guidance on the provision of both RME and RE, and separate guidance for RO.

For RE and RO in denomination schools the guidance points out that it the parents have chosen to opt-in to the school’s ethos and practice, which could be taken to imply that parents of children in denominational schools may be able to have their child avoid church services and not attend RE classes, but they will come into contact with faith-based religious education widely across the school.

In non-denominational schools, because of Curriculum for Excellence pupils may be exposed to education about religion in any subject. For instance, in teaching the history of Scotland some time could be spent explaining the religious factors in the Reformation. Learning about immigration could involve covering the main features of Islam. While parents can withdraw their child from all RME classes and ought to be able to avoid all RO activity, they cannot avoid all teaching about religion.

Asserting your rights

To assert your rights, you’re probably going to have to complain. You may also need to get more information to inform you. For advice on both please see our page on How to be heard.

Do you know more about this than me? If you’re reading this it’s quite possible that you do. Please send me corrections or suggestions on how to improve this page through our contact form

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2 thoughts on “The law

  1. Pingback: Consultation on Changing Your Rights to Complain | Taking Parents Seriously

  2. Pingback: New website for Scottish parents | summerbornchildren

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