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Section 2 - Legislative Position
2.1 The following section sets out a brief summary of the legal rights and obligations that relate to home education. Further details on some of the points raised in this section are covered later in the guidance.
Children
UN Convention on the Rights of the Child - Article 12
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 recognize the right of the child to 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) 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.
2.2 International law gives children a right to education. This right is enshrined in Scottish 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 (see below).
Parents
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.
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.'
2.3 The responsibility for a child's education rests with their parents.
While most parents fulfil this responsibility by sending their children to school, others may 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 may offer distinctive benefits for children and young people. Some guidance on what should be considered efficient education is set out in Section 5 below.
Education 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 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.
2.4 In all their educational responsibilities, education 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 build relationships with parents and children that support them in the choices that they make by offering advice, information and resources where feasible.
2.5 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 education authority is required for a child to be withdrawn from school. Section 37 requires an education authority to take action where they are not satisfied that an efficient education is being provided These provisions are explained in detail in Section 3 and Section 5 of this guidance, but are set out below for reference:
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.
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