Where are we now?
Schools in England, along with childcare and other education providers, have been closed “until further notice” since 20 March 2020, for all but vulnerable children and the children of critical workers. With several European countries beginning to re-open schools (Denmark from 17 April, Germany from 4 May and France from 11 May), it remains to be seen when and in what way the closure of our schools will be brought to an end. At the time of writing, the Department for Education (DfE) maintains that no date has been set for schools in England to re-open, but there is speculation around an announcement on 10 May. Geoff Barton, General Secretary of the Association of School and College Leaders (ASCL), has conjectured that the earliest “realistic” point at which schools in England could start re-opening would be from 1 June. A poll for the Observer on 2 May 2020 suggested that fewer than 1 in 5 of the British public believe the time is right to consider re-opening schools. However, in the meantime, the impacts of school closure – including its myriad legal implications – continue to accumulate.
What is the impact of continued closure on children and parents?
- The most obvious impact is upon pupil progress. The attainment gap between maintained and independent school pupils will likely broaden, as fee-paying schools are incentivised to provide more and higher quality online resources in order to justify continuing to charge fees which are often only slightly reduced below normal rates. (A future blog post will consider parents’ ability to bring legal actions where online teaching quality is not considered commensurate with continuing fee levels.) Initiatives such as the Oak National Academy, whilst helpful, are unlikely to bridge the gap.
- The negative impact of virtual-only schooling is likely to be felt most acutely by disabled children and those from low income families, raising the possibility of indirect discrimination. The Government announced on 19 April that “disadvantaged children” (care leavers or those with a social worker) were to be given a free laptop/tablet and 4G based mobile broadband to access online learning. However, it seems a band of children who do not fall within this definition of “disadvantaged” but nonetheless cannot access remote education could continue to see their right to education infringed by local authorities who have an obligation to ensure all children can access teaching. Readers may also be interested in Ciar McAndrew’s blog post of 18 May 2020 on this topic.
- Whilst schools are required to remain open for vulnerable children (defined as those with a social worker or an Education, Health and Care Plan), uptake has been considerably lower than hoped, with just 5% of vulnerable children entitled to a place turning up. Some parents are believed to be keeping children from school in response to broad, strong Governmental messages to stay home. However, if non-attendance were due to insufficient school places for vulnerable children (or children of critical workers) during school ‘closure’, responsibility lies with local authorities who are tasked with monitoring demand and supply, and eligible children with nowhere to go may have a legal cause of action against them. For a proportion of the children entitled to free school meals, their school dinner can be the most nutritious meal of the day, and so schools are expected to continue to provide support either in the form of food or vouchers, through the Department for Education’s national voucher scheme. Concerns remain that school closures could leave children hungry, as food and vouchers may not reach all children from low income families.
- During term time, teachers and other school staff are often the first to identify and report when a child may be vulnerable to abuse and neglect, or specific harms such as FGM or being drawn into terrorism (under the ‘Prevent Duty’). School closure brings an end to this safeguarding potential. Coupled with this is the fact that, as highlighted by the CEO of the NSPCC on 8 March, children not known to social services are more at risk at home than anywhere else. This means that, for example, sexual abuse – both in person and online – is likely to increase at the same time as schools’ ability to monitor children for such issues is removed. The Government pledged £1.6 million on 19 April 2020 to the NSPCC to expand its national helpline for adults raising concerns, but this safety net can by no means catch all children.
What should we expect?
When schools re-open it is going to be necessary to maintain social distancing, which will require advance planning, making a short-notice announcement of schools re-opening unlikely. It may be safest to do as other European countries re-opening schools have done and reintroduce certain year groups first. It was previously thought by some, including the ASCL, that it was most likely that England may opt for the German model, under which those preparing for upcoming exams or for secondary transfer return first. However, the Prime Minister indicated on 3 May that primary schools may be prioritised, which would mirror Denmark’s approach. Amanda Spielman, head of Ofsted, supports such a method. Any decision by Boris Johnson or Gavin Williamson would only apply directly to schools in England, since education policy is devolved to national administrations.
In the meantime, whilst the Government has thus far not responded to calls to make it compulsory for vulnerable children to attend school, it would be beneficial to have clearer Governmental messages around the availability of school places for them, which stress that those places are to help pupils and parents rather than to be a burden. Unless the most vulnerable soon return to school, the ramifications set out above will continue to cause problems, and families may turn to the courts for the remedy.
Imogen Proud is a barrister at Monckton Chambers who practices in Education Law. Before coming to the Bar, she was a state school teacher in Hackney and Islington.
