Any law that would compel people
to apply for approval by a Government body for inclusion in a register to allow
them to do something that they have a specifically delineated Constitutional
right to do, is, per se, unconstitutional. "Registration" on any "Register of
home educators" should be automatic upon receipt of notification of the intent
Other "rights" could get the same treatment as the right to home educate gets treated in the Education (Welfare) Act...
Like the right to vote.
You have to register to vote.
Suppose you had to "prove" you were "capable" of voting (i.e., know the names of the major politicians and understand all the issues) before you would be allowed on the "register of voters" ...
... sure it's ridiculous, but so is the idea of making home educators "prove" they are capable of providing an education that is "up to a standard" determined by the Minister at the time* to be adequate in order to be allowed to undertake an activity they have a specifically enumerated Constitutional right to engage in "according to their means".
Home education must only be limited when, despite all efforts to support the family with a view to bringing the education provided up to scratch, it becomes evident that the child is not receiving a "certain minimum" education.
The principle that "a person should not be a judge in their own cause" was upheld by the High Court in the case of the domicilliary midwife, Ann Ó Ceallaigh, as reported in the Irish Times, Tuesday, March 14, 2000:
"the judge (Mr Justice O'Higgins)
said that "lawyers for Ms Ó Ceallaigh would be entitled to argue that
the members of the Fitness to Practise inquiry which heard the complaint against
Ms Ó Ceallaigh were also members of the board (An Bord Altranais - the
nursing board) and that this was contrary to the principle that a person should
not be a judge in their own cause".
It was argued by Ms Ó Ceallaigh's counsel, solicitor Colm MacGeehin, that the nurses on this board had a "huge vested interest to protect". A Schools Inspector has training for and experience of assessing education in a school. Classroom education would be the Schools Inspector's "vested interest". In the same vein, sending "School Attendance Officers" who have been renamed "Education Welfare Officers" to assess home education amounts to a mandate to be "judges in their own cause".
Schools Inspectors and School
Attendance Officers are, by virtue of the ethos around which their whole working
lives revolve, sceptical of education in the home.
It is the job of a School Attendance Officer to ensure that all children attend school. They would, therefore, be prejudiced against home education from the start. They have a "vested interest" to protect.
The majority of the members of the Educational Welfare Board will be appointed from the school-teaching profession. It is unlikely that they will not be biased against home education. Neither the Board nor the Appeals Committee will include any home educators or experts in home education.
Recent precedents indicate that only parents with above-average incomes will be approved by the Board for inclusion on the register of home educators. Those less well-off will be told to send their child to school where there are more resources; told that because of the presence of those resources in the school, its educational provision is automatically superior to the provision in their home.
Once a home has been approved by the Board as providing a "certain minimum education", it could be construed legally as a constituting a "recognised school", and therefore entitled to request allocation of funds for the provision of educational resources from the State. The Department of Education usually brings up Article 42 of the Constitution in these cases, stating that, as the parent has exercised his or her Constitutional right to home educate "according to their means", there is no obligation upon the State to provide financial support. A circular argument. But a precedent exists where a less-well-off home educating parent has requested financial assistance to provide her child with educational resources, stating that because the home was where the education took place it was the child's school. The parent ultimately received the financial support requested from the Department of Education.
Many speakers in the Dáil debates
on the Education (Welfare) Bill mentioned that its objective was "to put structures
in place to encourage and promote school attendance; to encourage young people
to remain in the education system." These objectives are fundamentally incompatible
with home education. It was stated by a TD in one of these debates that "the
function of the school attendance officer was to punish". The Act allows home
education but only under certain conditions. These conditions include rigorous
examinations that themselves constitute infringements of personal civil liberties.
The function of the Education (Welfare) Act is to "punish" those who do not attend school. The examinations that would be carried out by Inspectors could actually cause psychological damage to the child examined. The right to choose to provide your child's education in your home is so eroded by the intrusions that enforcement of the Education (Welfare) Act would make on people's personal freedoms and so undermining of the autonomy of the child that it is obvious that the legislators enacting that law have given no more than "lip-service" to the Constitutional right to home-educate.