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Scrap perverse laws extending parental rights past age of majority

Comment 2nd July 2010

Amend the general definition of "parent" in education law, by replacing the phrase "parent" with the phrase "relevant person", as defined below:

"relevant person" means –

(a) in relation to a pupil under the age of 18, a parent of the pupil;
(b) in relation to a pupil who has attained that age, the pupil. 

The definition of "parent" in section 576 of the Education Act 1996 would remain the same.

This simple change would allow 18-year-old men and women attending school to take their own decisions over their own education, as the adults they are.

Why does this matter?

Current education law gives parents extensive statutory rights over their child's education, even after the "child" turns 18 and becomes an adult.

For example, section 71 of the School Standards and Framework Act 1998 gives parents of 18-year-old adult men and women the statutory right to withdraw them from religious education.

Section 405 of the Education Act 1996 provides for an identical right of withdrawal from sex and relationships education, whilst section 312 of the Education Act defines "child" as any person under 19, with the following sections then giving parents extensive statutory rights of appeal against special education needs decisions over any "child" under 19.

These statutory rights are absolute and unchallengeable, and apply regardless of the 18-year-old adult pupil’s own wishes and best interests.  They even apply if the pupil lives independently from their parents and has cut off all relations with them, and indeed could be exercised by a divorced parent who has no contact whatsoever with their adult son or daughter.  One parent acting alone is free to exercise these rights of withdrawal, even if both the other parent and the adult pupil themselves disagree that the pupil should be withdrawn.

I believe that it cannot be right for education law to grant adults unconditional and unchallengeable statutory power over other adults, as is the case with the continuation of parental rights after parental responsibility has terminated, meaning that parents are no longer any obligation to exercise their statutory powers in a responsible manner, or in the pupil’s best interest. 

This means that 18-year-old adult pupils, despite being old enough to stand for Parliament, are officially considered in UK education law to be mere chattels of their parents.

I also believe that laws granting adults absolute rights over other adults without any corresponding responsibilities are a breach of natural justice in that there are two basic principles of English law that with rights come responsibilities, and that competent adults are entitled to take decisions for themselves.

This is all the more unjust given that an 18-year-old pupil is held to be legally responsible for their own education, and is therefore deemed to be responsible for decisions taken by their parents on their behalf even where the pupil actually opposed such decisions! 

These statutory rights are wholly incongruous with the rights given to 18-year-old pupils in other parts of their own education.

 For example, an 18-year-old sixth-former can enrol themselves in school, choose their own subjects, withdraw themselves from collective worship, represent themselves in formal disciplinary hearings, access their own school records. and even withdraw themselves from school altogether, but yet can still be withdrawn from sex, relationships and religious education based solely on the whim of their parents.

The above laws are arguably contrary to the principles of:

-Section 1 of the Family Law Reform Act 1969, insofar as education law extends statutory parental rights past the age of majority as set by the FLRA, being 18;
-Section 3(1) of the Children Act 1989, which defines parental rights as being part of parental responsibility for a child, which of course terminates absolutely on the pupil's 18th birthday, as per section 105(1) of the said Act, which defines "child" to mean a person under the age of eighteen;
-The Gillick ruling [Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402 (HL)], insofar as it expressly ruled that parental rights exist only as part of parental responsibility, which of course terminates absolutely on the pupil's 18th birthday, and further provided that parental rights exist only because the child lacks the ability to take informed decisions for themselves;
-Past ECHR rulings in Z v Finland (1997) 25 EHRR 371 and MS v Sweden [1999] 28 EHRR 313, insofar as they both ruled that parental rights exist only as part of parental responsibility, which of course terminates in the UK on the pupil's 18th birthday                                                     – Article 9 of the European Convention on Human Rights (relating to freedom of religion and freedom of conscience), in that the said laws provide that adult men and women must be educated in accordance with the religious wishes and conscience of their parents, rather than in accordance with their own wishes.

It may be relatively rare for parents of adult men and women to "abuse" their absolute parental rights in this way, I would suggest that even one such instance of the adult pupil's own wishes being overridden is one instance too many.  I would also respectfully point out that most other advanced countries, certainly Germany and Canada, have statute law or case law expressly permitting 18-year-old adult pupils to take all their own decisions in respect of their own education. 

I believe that the lack of rights given to 18-year-old adult pupils acts as a disincentive for sixth-form pupils to remain in full-time education, and may contribute to the low ‘staying-on rate’ in England and Wales relative to many other developed countries. 

After all, if a 16-year-old pupil drops out of school and goes out to work full time then they are largely treated as an adult at work, yet if they take the responsible and mature decision to “stay on” at school, then their dubious reward is to be considered as a "child" in education law even after turning 18.

I believe that making this change would increase the enrolment rate and be of long-term benefit to the nation.

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