9. Alongside ‘supplementary’ schooling, there are a small number of settings that may pose as providing part-time education but in fact such provision is either full time or the only educational input that a child receives. There is currently a gap in the legislation where a place that only teaches religious instruction cannot be registered as a school, even if this is the only education a child or young person receives. Ofsted says that this leads to a perverse situation where,
“As the law stands, the more inadequate the educational provision, the more likely a setting is to be exempt from regulation”.[1]
10. Under the Education and Skills Act 2008, it is unlawful in England for a person to conduct an independent educational institution – which is defined as including an independent school – unless it is registered.[2] There is no statutory definition of what constitutes a school, though guidance produced by the Department for Education states that settings must register as independent schools if they provide ‘full-time’ education to five or more children, or one child who is either looked after or has an education, health and care plan (EHCP).[3] The Department for Education stated that it considers an institution to be providing full-time education if “it is intended to provide, or does, provide, all, or substantially all, of a child’s education”, but the current guidance does not reflect this aspiration.[4] The term ‘full time’ is also currently not defined in law; Department for Education guidance refers to this being more than 18 hours per week.[5]
11. According to Ms Amanda Spielman, Chief Inspector of Ofsted, there is a “certain amount of avoidance activity” about the definition of schools, such that for example “people split their provision and … describe it as being two separate providers, even though, in practice, the same people, the same premises may be used”.[6]
12. Ofsted has long held “serious concerns” that a minority of out-of-school settings are putting children at risk of harm by failing to adhere to basic child protection standards.[7] Ofsted’s remit in inspecting such settings extends only to establishing whether an unregistered school is being ‘conducted’. It cannot formally inspect and evaluate the effectiveness of safeguarding or child protection in these settings. It does not have powers to take any action against these settings, unless it is determined that they are operating as unregistered schools.[8] The vast majority of supplementary schooling is therefore unregulated and subject to limited or no oversight in respect of child protection.
13. If individuals are found to be operating unregistered schools, this may result in prosecution. The maximum penalty for such offences is six months’ imprisonment or a fine. Ofsted does not have the power to close unregistered schools. Ms Spielman noted that in one of its prosecutions:
“the school carried on operating for some time after the conviction … If somebody chooses to carry on operating after a conviction, the only thing we can do is to go back around the cycle of attempting to initiate another prosecution, which, of course, is a long, slow haul.”[9]
14. Ofsted established a taskforce in 2016 to investigate suspected unregistered schools because of concerns that there were a significant number of out-of-school settings that may not be providing adequate education or child protection arrangements for those in their care. Of the 644 out-of-school settings Ofsted suspected of operating as unregistered schools, around one-sixth were settings providing religious instruction.[10] While not all of these settings were inspected by Ofsted and some of them did not have any direct complaints about child protection failures, the very absence of regulation creates a risk of harm to children.
15. Between 2015 and 2019, Ofsted received referrals about 108 out-of-school settings providing religious instruction where there was concern that the setting was being operated as an unregistered school.[11] Of these, six were Christian, 29 were Jewish, 70 were Muslim, two were Hindu and one was Sikh.
16. In total, during this period Ofsted inspected 31 out-of-school settings that provide religious instruction. Two were Christian, 17 were Jewish and 12 were Muslim.[12] Ofsted has issued warning notices requiring settings to close or register to five settings that provided religious instruction and 13 that had a faith ethos but provided a broader education.[13]
17. We heard evidence raising concerns about child protection in some yeshivas. A yeshiva is a place of learning for young men from the Charedi Jewish community. Such education begins in early adolescence and continues until these young men are in their early twenties. The education provided focusses on the study of traditional religious texts (the Talmud and the Torah) and learning Jewish law (Halacha). These places of education do not teach secular subjects. This education is full time (and in some cases very long hours), and young men do not attend other forms of secular education. It is not clear how many children are educated in these settings, but they are likely to be in the thousands.[14]
18. The London Borough of Hackney, where many yeshivas are situated, identified significant concerns about the safety of premises and whether adequate ‘safer recruitment’ practices were being appropriately applied.[15] Ofsted inspected three yeshiva settings between 2016 and 2018 to see if they were operating unregistered school settings.[16] It found significant problems in their running, including an inability to find out whether Disclosure and Barring Service (DBS) checks had been carried out in the recruitment of staff, and “scant” records. The culture of child protection in these yeshivas was weak.[17] Inspectors gained entry in two settings without challenge, and in none of the institutions could adults give the number and names of the children in the setting at any one time. There were also fire safety concerns, such as locked fire exit doors, and “significant” hazards (such as multiple broken and shattered windows, electrical sockets in disrepair with exposed wires, broken tiles, a dirty kitchen, uncovered vermin bait in classrooms and inadequate toilet facilities).[18] Ofsted was unable to take further action. The yeshivas either provided a curriculum based solely on religious education or did not provide full-time education. Consequently, as set out above, they are not required to be registered as schools under the current legislation.
19. Ofsted has a range of concerns about such settings. It was supplied with information and a booklet signed by members of the Charedi community involved in education in yeshivas, which advocated corporal punishment and suggested that a teacher passed on God-given truths that must be learnt and obeyed. Ofsted has also been provided with examples of corporal punishment in those settings.[19]
20. Local authorities also reported concerns about corporal punishment in madrasahs, as did other organisations working with some madrasahs.[20]
21. Ofsted reported its concerns about unregistered schools, including those with a faith basis, to the local authority, the London Fire Brigade, the Health and Safety Executive (HSE) and the Metropolitan Police Service, and has participated in numerous meetings about this issue.[21] Ofsted has found limits in what local authorities can do – for example, at present, local authorities have very limited powers to monitor home education (many of the children at these settings say that this is part of their home education, or parents identify it as such), and are often reluctant to intervene in the absence of a concern of abuse of a specific child.[22] For example, in relation to one educational setting, the HSE and the local authority considered that, in such cases, they did not have the power to intervene.[23]
22. These risks are not confined to one faith or denomination. Ofsted also encountered a Muslim early years setting with 3,000 children attending during the week. Staff had not undertaken any child protection training, and the policies were “inaccurate”. They were isolating children and forcing them to stand up for 15 to 20 minutes, even though they were very young.[24] Ofsted cancelled the setting’s early years registration – but even without registration, the setting remains open (de-registration simply prevents the claiming of tax-free childcare).[25] In another case, an individual running an out-of-school setting had already been prohibited from teaching in full-time schools. When approached by inspectors, he was aggressive.[26] Ofsted did not have the power to take any action in this instance, as it was not a full-time school setting. The local authority designated officer (LADO) also decided that she could not take any action because there was no proof of harm to any individual child.[27]
23. Other local authorities have significant and serious concerns about some out-of-school settings and their approaches to child protection. Local authorities are worried by their lack of powers to take action.[28]
24. To give an example, the Charity Commission conducted an investigation into the Essex Islamic Academy following a serious incident report made in 2017. Police found a volunteer who was allowed to provide oversight of children and teach them in an after-school madrasah without having any DBS certificate. He had exposed the children to videos of beheadings.[29]
25. Hackney Council has been dealing with concerns around schooling in yeshivas since at least 2014, yet “no real progress” has been made.[30] As a result, it set up a scrutiny commission, which investigated the situation in respect of unregistered schooling. In 2018, it concluded:
“the cultural and educational traditions of one particular group, the Charedi Orthodox Jewish Community, are at odds with the Council’s statutory duty to safeguard local children and Central Government’s duty to ensure they receive an appropriate education which conforms to national standards … whilst the parents of at least 1,000 teenage boys in Hackney send them to unregistered establishments to access the learning that they wish them to receive, being unregulated, there are few, if any safeguards in place to ensure their safety and well-being or that they are being taught to an acceptable standard … Despite repeatedly having been told by safeguarding and other professionals dealing with this issue that they have no legal ‘clear line of sight’ on children within these settings, the Department for Education has indicated that it has no plans to legislate in the current legislative cycle. We find this unacceptable and if a case of serious abuse were to be revealed in one of these settings we would consider that the Department for Education would have serious questions to answer.”[31]
26. The City and Hackney Safeguarding Children Partnership (CHSCP), which has responsibility for strategic oversight of child protection, has written to central government on a number of occasions, expressing concern about its impotence in resolving its concerns about schooling in yeshivas.[32] It has sought to engage with the Charedi community and to seek their cooperation, but the Charedi community have been “unable, unwilling or lacked the overarching authority to commit to the changes required”.[33] Rabbis with whom the authority has engaged have stressed the autonomy of individual Charedi schools and the rabbis’ lack of authority over them. Formal requests to identify pupils attending these out-of-school settings have been met with silence.[34] The UOHC described the intervention of the CHSCP as “well meaning” but said that the CHSCP does not understand the Charedi community and takes approaches that are impractical. The UOHC is not an umbrella body for the whole of the Charedi community and does not have direct authority over any yeshivas. The UOHC agreed that engagement with the local authority had not yielded positive results and had caused “a lot of frustration”.[35]
27. The UOHC identified a number of barriers to a constructive relationship with CHSCP and other governmental bodies concerned with child protection.
27.1. When the local authority says that children should be in the ‘line of sight’ of the local authority, this is perceived as arrogant, overbearing and intrusive by the community. Settings regard their own community as providing greater safeguards for their children than the state. The “instinct” of these communities is also to keep authorities at a distance, as a result of centuries of persecution.[36]
27.2. There has been a view that Ofsted has sought to interfere in the Charedi community’s religious ethos in circumstances where it has criticised the policies of some registered schools within the community. Also, that the criticism of yeshivas is part and parcel of criticism of religious settings, and the views held within those settings that may not accord with those of secular society.[37]
27.3. Local authorities can make negative portrayals and statements about the community.[38]
27.4. The local authorities may not understand that the UOHC cannot control the community or practically furnish the authority with a list of settings, and may have an unrealistic expectation of the administrative capacity of settings.[39]
28. The UOHC would prefer to use voluntary initiatives, using those within the community to provide training and advice, such as the Interlink Foundation or Shema Koli (a counselling and helpline organisation) rather than to compel registration.[40] Hackney Council has indicated that they use the Interlink Foundation to provide some training in child protection.[41]
29. Some members of the Charedi community, including some religious leaders, do not wish to change the current position – largely because they consider that having to register or have some formal oversight would lead to them having to teach matters they consider to be contrary to their faith, and would be an unnecessary interference with a form of education practised for centuries.[42] The UOHC and Rabbi Jehudah Baumgarten (who gave evidence on its behalf) do not necessarily disagree. The Charedi community consider that Ofsted’s inspections of some of the schools that are registered as independent providers of full-time education have led to what they consider to be “deep interference” in their religious ethos.[43] Ofsted has been criticised in its approach to inspections, not just in respect of the Charedi community but also in other educational settings with a faith ethos, for having a “secular agenda”.[44] Its answer, as given by Ms Spielman, is that Ofsted is just reflecting the need for all schools to comply with the Equality Act 2010.[45] It accepts that both the Charedi community and other faith groups dislike its inspection of whether these settings adhere to the Equality Act 2010 and consider that there is a disproportionate focus in inspections on these issues.[46]
30. A letter addressed to the Prime Minister, sent in May 2021 on behalf of a group of rabbis within the Charedi community and proprietors of yeshivas, set out the position as they perceived it:
“Our schools were set up by the Orthodox Jewish community leaders and parents in order to safeguard its sacred teachings and lifestyle and to abide by the beliefs, practices and traditions of Torah and Rabbinic authority. It is therefore our position and conviction that any measures proposed which may conflict, with our honored religious principles, cannot be considered.
We are resolute in our position and our conviction that with regard to the education of our children and those of our congregants (who belong to the Traditional Orthodox Jewish Community Worldwide), we shall not diverge in the slightest degree from our faith, nor from the traditional Torah method of education handed down to us from earlier generations. Under no circumstances shall we adapt to accept any ideas that are contrary to our faith and our Holy Torah, or contrary to the traditional form of education handed down to us by our ancestors.”[47]
31. Both Ofsted and CHSCP were clear that, although they did not wish to interfere with the practice of faith, they consider that the current situation does not have due regard to the best interests of children. A system is required in which it is possible to take preventative action to tackle potential abuse and to ensure that all settings have basic standards in place in respect of child protection.[48]
32. The Department for Education has consulted on whether to change the law in respect of registration of schools because of the concerns set out above. It produced a consultation in February 2020 (withdrawn because of the COVID-19 pandemic and re-issued in October 2020), through which it proposed to:
33. Ms Dixon told us that the Department for Education recently made a public commitment to legislate as soon as possible to “tighten the definition of an independent school”.[53] Ms Dixon also stated that it has committed to legislating to strengthen Ofsted’s powers in respect of unregistered schools:
“we respect Ofsted’s work in this area, and they don’t have the powers that they would have in the equivalent of a school, so we would like to in some way replicate those powers so they can be as strong and as effective in those unregistered schools”.[54]
34. In addition to the voluntary Keeping children safe in out-of-school settings: code of practice, there are pilot projects examining further ways in which powers of local authorities could be used.[55] However, at present, these do not amount to compulsory minimum standards for out-of-school or after-school settings. There are also no current powers or proposals to provide a form of oversight of such settings. While the Department for Education proposes to introduce legislation to require parents to register with local authorities if they are providing part-time tuition for those educated primarily at home, there are no plans for local authorities to inspect or oversee this tuition.[56]