This Briefing considers some aspects of Government statutory guidance for governing bodies, proprietors, head teachers, principals and senior leadership teams: Relationships Education, Relationships and Sex Education (RSE) and Health Education.

Introduction

The teaching of relationships and health may, for some families, be contentious. However, this is likely to be overshadowed by concerns that some parents and carers will have about schools teaching Sex Education (concerns that may be religious, cultural and/or related to interfamilial abuse).  This guidance for schools could have significant implications for parents, carers, children’s social care staff and departments and care proceedings as well as for looked after children and young people (or, indeed, some children in need). It is this aspect of the guidance: it’s potential impact on children in need, in pre proceedings and who are looked after, that this policy brief explores and considers. There may also be circumstances where children’s social care may be drawn into private law matters in respect of disputes between parents i.e. S37 Welfare reports/S8 Children Act  1989 (Residence in particular).

Key Aspects of the Guidance

From September 2020 Primary schools must have a written policy for Relationship Education and Health Education. They may teach sex education but they are not required to do so.

From September 2020 Secondary schools must teach and have a written policy for Relationships and Sex Education. Secondary schools may choose to develop their policies and teach these subjects from September 2019 but are not required to do so.

Apart from Sex Education in primary schools these subjects will be compulsory from September 2020. The schools must make their policies readily available for all parents.

Parents will have the right to withdraw their children from some or all aspects of Sex Education but will have to set out their reasons for so doing to the Head Teacher. However, they will not be able to withdraw their child in their final three terms before leaving. This would be a matter for the young person concerned to decide.

Although the parents request to withdraw their child from Sex Education, once granted, should be honoured, the Act states: section 4 (3)(3)  If the parent of any pupil in attendance at a maintained school in England requests that the pupil may be wholly or partly excused from sex education provided as part of statutory relationships and sex education, the pupil must be so excused until the request is withdrawn, unless or to the extent that the head teacher considers that the pupil should not be so excused.

The section above appears not to apply to schools other than maintained schools i.e. Academies, Free Schools and other Independent schools.

Each school must ensure their policy enables access to the curriculum for all pupils. However, with regard to Sex Education, the head teacher will have to decide whether a pupil with SEND may be excused. The guidance does not clarify whether or how this could be challenged.

Lesbian, Gay, Bisexual and Transgender (LGBT) issues should be integrated into the overall curriculum in Relationship, Health and Sex Education and not delivered as an ‘add on’. It is vital that this is clear to parents who might be under the misapprehension that LGBT issues would only be taught as part of Sex Education alone. For some parents, who have concerns about the teaching of LGBT issues, it may be a surprise and a matter of concern to discover that they cannot withdraw their child from Relationship and Health Education lessons that include LGBT issues.

Potential Implications for Children in Need and Looked After Children

The guidance is silent on the implications it may have for the children identified in the introduction above. There will, however, be a need for children’s services to give thought to and develop policies related to this issue in good time before September 2020 (or, earlier in those areas where schools have decided to offer these curriculum areas from September 2019).

Children in Need

Children with SEND may be withdrawn from Sex Education delivered as part of RSE as requested by their parents OR as decided by the Head Teacher. Whilst the guidance does not specify this the school should be clear about whether there is an appeals process for parents where a Head Teacher makes a decision and, where there is, how it can be accessed.

Children in Pre Proceedings

Parents will have the right to withdraw their child from Sex Education delivered as part of RSE. However it is unclear what might happen in circumstances where parents of a child subject to care proceedings have strong views about whether their child should be withdrawn from Sex Education as part of RSE. Clearly, the views of the young person (depending on age and understanding) will need to be considered and an advocate for the young person may be required. A Specific Issue Order by the Court may also have to be considered, in order to reduce any potential dispute between the parents and the Local Authority should they have parental responsibility albeit even on a temporary basis.

Parents may be able to request that their child is placed with carers who will promote their own views on this matter, much as they may request that their child is brought up in an environment that reflects their own religious beliefs. Whilst the views of the parents should be considered a factor in determining a placement, the availability of placements may impact on the ability of the placing authority to deliver this in all cases.

Equally it is possible to envisage circumstances where parents may have differing views about whether their child should or should not be withdrawn. Courts may be asked to adjudicate in such cases and, again, a Specific Issue Order by the Court may have to be considered.

Sex Education and the Looked After Child

Children’s social care will have to decide whether this is a matter for the Local Authority to develop and maintain a local policy setting out whether all secondary age children (and primary age children attending primary schools offering Sex Education as part of RSE) who are looked after (Sec31 [Care Order]) will be expected to attend Sex Education as part of RSE or whether there will be circumstances where some children may be withdrawn (for example, as a result of a learning disability).

Matters may be further complicated in the case of children placed at a distance or in neighbouring Local Authorities.

Children and young people looked after under a S20 arrangement will be subject to their parents views, although the views of the young person (depending on age and understanding) will need to be considered and an advocate for the young person may be required.

Although the guidance is clear that the decision to attend Sex Education as part of RSE is a matter for parents until the last three terms of the young person’s school life. The question of the young person’s competence to form a view about whether they should or should not attend Sex Education lessons as part of RSE will need to be factored in.

The Local Authority will need to consider whether this issue will be a consideration when placing children on a Special Guardianship Order.

This is an area where some carers, social workers and residential staff may feel less than fully confident. There will be a need for them to see the school policy, to have some idea of the curriculum as it is unfolding and to be offered support in responding to questions from the children in their care and/or their birth parents. It will be important that carers are supporting what is being taught irrespective of any privately held views they may have. Training and opportunities for thinking about these issues may be required before September 2020.

If they are caring for a child who has been withdrawn from some or all of Sex Education as part of RSE carers will need to think about their responses if or when the children in their care are told (whether accurately or not) by other pupils about the lessons.

The issue will need to form an integral part of Personal Education Plans and LAC plans and these will need to reflect any conflicting views that may be held.

Finally, because this is a potentially divisive issue Local Authorities may need to have a clear view about how they will manage media challenges by disaffected or distressed parents.

For more information about the variety of schools in England please go to: Comparison of different types of school: A guide to schools in England.