This Review is the first time that the office has used the power to review the exercise of functions of the Welsh Government under Section 72B Care Standards Act 2000. The Review has been undertaken in respect of the Welsh Government’s response to the Dylan Seabridge Child Practice Review published July 2016, implementation of their public commitments following this, the basis for decision making relating to the policy areas of home education and independent schools within Welsh Government and the consideration of children’s rights under the United Nations Convention on the Rights of the Child (UNCRC) throughout all of this work.
My team and I have reviewed documents in the public domain and in my office’s possession, primarily dating back to 2015, although some earlier documents have also been considered as relevant. Despite a number of actions taken by the Government, I have concluded that very little, if any, substantive progress has been made in either of the two policy areas under consideration (home education and independent schools).
Consultations on revised guidance for home education in Wales have been under consideration throughout my term as Commissioner.
A lot of work has happened within Welsh Government in relation to this policy area, but this work has been affected by delays, despite pursuit of an approach using existing legislative powers which has curtailed the Government’s ability to fully achieve their policy aims. There has also been, in our view, a lack of clarity of those policy aims. This is because the policy work has not always explicitly linked back to the Dylan Seabridge child practice review recommendations, which recommended that all elective home educated children should be seen and spoken to and their wishes recorded on an annual basis.
Further reports and consultation responses highlighted the same issues, so the Government has had a clear roadmap of the necessary changes required. The Government initially chose to make changes under powers in the existing legislation; this Review has shown the deficiencies in this approach. The approach was also intended to achieve swifter changes than would have been achieved by creating new primary legislation.
Unfortunately, the net result is that no substantive change has actually been achieved by any means. The issue will roll over for a third successive Government term to be considered again.
In deciding not to proceed with changes to the guidance and regulations in 2020, the Government failed to consider children’s rights as part of that decision. They also do not appear to have considered how this decision affected other policy work, such as revised guidance for children’s routine engagement with universal services.
In respect of safeguarding in independent schools, the Review evidences that the Government has been aware of the need to make changes to strengthen the safeguarding and regulatory provisions that they need to comply with for up to 18 years. The Education Workforce Council (EWC) informed us that their predecessor organisation raised this issue 18 years ago.) However, the Government has failed to make any such changes despite a serious case that arose in 2019 at an independent school in Denbighshire. Professionals involved in that case highlighted how differently the case would have been handled had the behaviours of the head teacher taken place in a maintained school.
Only the Government, as the registrar and regulating body, has the ability to take action in respect of failings at independent schools, as well as to learn lessons and strengthen the legal standards that such schools have to comply with.
Proposals for teachers from independent schools to be registered with the Education Workforce Council were supported in a review undertaken just prior to the end of the fourth Senedd Term in 2016. These proposals were not taken forward by the new Government however, and we now reach the end of the fifth Senedd Term without any progress having been made. The Government has not yet resolved the question of whether primary or secondary legislation is needed in order to make these changes, so there is no clear proposal ready for a new Government to take forward despite the passage of another five-year term.
I have made findings in relation to:
- Insufficient consideration of children’s rights
- The accountability of the Government’s consultations process
- Lack of focus on outcomes for children in choosing the most appropriate legislative route for policy change
- The regulation of independent schools by Welsh Government
- Deficiencies in the procedures for sharing and learning from Child Practice Reviews
- Ongoing concerns about cross-governmental working
- Gaps in the legal framework supporting my own organisation’s legislative powers to review the actions of the Welsh Government.
I have concluded that the current Welsh Government has failed to respond adequately to:
- The learning identified following the death of Dylan Seabridge in 2011
- The safeguarding concerns related to independent schools that they reviewed between 2014-16.
In doing so, the Welsh Government has not complied with its legal duties pursuant to the Rights of Children and Young Persons (Wales) Measure 2011. The Government is required, by Article 4 of the United Nations Convention on the Rights of the Child to “undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention” and I do not find that this has been the case.
Welsh Government response
You can read the Government’s response to the review in this PDF.
This response accepts ‘in principle’ the recommendation for primary legislation around home education, but Government’s intention is to bring forward the plans for secondary legislation. This is despite the shortcomings that the Review identified with those plans. Welsh Government’s plans for secondary legislation are therefore not enough to ensure children’s rights.
Government accepts recommendations around independent schools, and regulatory change in this area is expected to progress through the Senedd early in the current Government term.
Next steps for the Children’s Commissioner
The Children’s Commissioner continues to call on Government to bring forward primary legislation to ensure the human rights of children who are home educated.
The Children’s Commissioner will scrutinise expected regulatory change in relation to independent schools to ensure that this takes every possible measure to ensure and safeguard the rights and welfare of children in independent education settings.