DFE Circular 5/94 (1994)

This Circular set out the statutory position on sex education following the changes introduced by the 1993 Education Act. It replaced Circular 11/87.

Circular 5/94 was prepared for the web by Derek Gillard and uploaded on 10 May 2019.


Circular 5/94 (1994)
Education Act 1993: Sex education in schools

Department for Education
London: 1994

Crown copyright material is reproduced with the permission of the Controller of HMSO and the Queen's Printer for Scotland.


[title page]

Education Act 1993: Sex Education in Schools

Summary of contents

The Circular

(a) sets out the statutory position on sex education in schools, following the changes introduced by the Education Act 1993;

(b) gives advice on the appropriate content and purpose of sex education;

(c) offers guidance on the development and implementation of policies on, and programmes of, sex education;

(d) describes the roles of governors, head teachers and other staff, local education authorities and parents; and

(e) indicates the action now expected from those concerned.




All enquiries about this Circular should be sent to:

Ms J M Cushing
School Curriculum Branch
Department for Education
Sanctuary Buildings
Great Smith Street
London SW1P 3BT

Subject area:
Sex Education in Schools

Date of issue:
6 May1994

Expiry date:
-

Related documents:
-

Superseded documents:
Circular 11/87

Audience:
Local education authorities
Head Teachers and
Governors of Maintained
Primary and Secondary
Schools
Head Teachers and
Governors of
Grant-maintained Primary
and Secondary Schools
Head Teachers and
Governors of Maintained
Special Schools

This guidance does not constitute an authoritative legal interpretation of the provisions of the Education Acts or other enactments and regulations; that is exclusively a matter for the Courts.




[page 2]

Contents

Para-
graphs

Introduction
1-2

The statutory provisions
3-6

The Role of Parents
7

A moral framework for Sex Education
8

The context of Sex Education
9-12

Developing a school policy on Sex Education
13-34
The role of governors in primary schools14-20
The role of governors in secondary schools21-25
The role of governors in special schools26
The role of governors in all maintained schools27-28
The role of the head and other teachers29-32
The role of the LEA33-34

Implementing Sex Education Policies and Programmes
35-43
Information for parents35
The right of withdrawal36-37
Advice to individual pupils38-42
Teacher in-service training43

Action
44-49
Primary schools45-46
Secondary schools47
Special schools48
All maintained schools49

Annex A: Sex Education: Schools' legal obligations

Annex B: A Summary o/the Law on Sexual Behaviour

Annex C: Guidance on good practice in developing a School Sex Education Policy


[page 3]

Introduction

1. This Circular explains the changes made by the Education Act 1993 in the law governing the provision of sex education in maintained schools in England, and offers guidance to local education authorities and schools on implementation. It does not represent an authoritative statement of the law; only the courts can provide that. It supersedes Circular 11/87 which is hereby withdrawn.

2. Any enquiries about the contents of this Circular should be addressed to Mr P Connell, School Curriculum Branch, Department for Education, Sanctuary Buildings, Great Smith Street, London SW1P 3BT





[page 4]

The Statutory Provisions

3. The Government believes that all pupils should be offered the opportunity of receiving a comprehensive, well-planned programme of sex education during their school careers, in fulfilment of the requirement of section 1 of the Education Reform Act 1988 that the school curriculum should be one which:

a. "promotes the spiritual, moral, cultural, mental and physical development of pupils at the school and of society; and

b. prepares such pupils for the opportunities, responsibilities and experiences of adult life."

4. The Government has therefore provided that, when the changes introduced by section 241 of the Education Act 1993 come into force on 1 September 1994, schools will have the legal powers and duties summarised below:
in maintained primary schools, governing bodies will have the responsibility of considering whether or at what stage to offer sex education. They must keep an up-to-date written statement of the policy they choose to adopt, which must be available to parents;

in maintained secondary schools, sex education (including education about HIV and AIDS and other sexually transmitted diseases) must be provided for all registered pupils. As in primary schools, the governing body must make a written statement of their policy on sex education available to all parents;

in all maintained schools any sex education must be provided in such a manner as to encourage young people to have regard to moral considerations and the value of family life. The parents of a pupil at any maintained school may, if they wish, withdraw that pupil from all or part of the sex education provided.

5. Details of the relevant legal requirements are at Annex A. A summary of the relevant law on sexual behaviour generally is at Annex B.

6. This circular seeks to help schools implement these requirements. It outlines the considerations which the Government believes schools should take into account in determining their policies and offers at Annex C models of good practice.


[page 5]

The Role of Parents

7. The prime responsibility for bringing up children rests with parents. Schools should therefore recognise that parents are key figures in helping their children to cope with the emotional and physical aspects of growing up and in preparing them for the challenges and responsibilities which sexual maturity brings. The teaching offered by schools should be complementary and supportive to the role of parents, and should have regard to parents' views about its content and presentation. The more successful schools are in achieving this, the less the likelihood that parents will wish to exercise their right of withdrawal.





[page 6]

A moral framework for Sex Education

8. The Secretary of State recognises that sex education is a difficult issue which will place demands on schools and teachers. But it is an important part of children's preparation for adult life, and he is very grateful to teachers for the contribution they make to this. In his view, the purpose of sex education should be to provide knowledge about loving relationships, the nature of sexuality and the processes of human reproduction. At the same time it should lead to the acquisition of understanding and attitudes which prepare pupils to view their relationships in a responsible and healthy manner. It must not be value-free; it should also be tailored not only to the age but also to the understanding of pupils. The Secretary of State believes that schools' programmes of sex education should therefore aim to present facts in an objective, balanced and sensitive manner, set within a clear framework of values and an awareness of the law on sexual behaviour. Pupils should accordingly be encouraged to appreciate the value of stable family life, marriage and the responsibilities of parenthood. They should be helped to consider the importance of self-restraint, dignity, respect for themselves and others, acceptance of responsibility, sensitivity towards the needs and views of others, loyalty and fidelity. And they should be enabled to recognise the physical, emotional and moral implications, and risks, of certain types of behaviour, and to accept that both sexes must behave responsibly in sexual matters. Teachers need to acknowledge that many children come from backgrounds that do not reflect such values or experiences. Sensitivity is therefore needed to avoid causing hurt and offence to them and their families; and to allow such children to feel a sense of worth. But teachers should also help pupils, whatever their circumstances, to raise their sights.




[page 7]

The context of Sex Education

9. In July 1992 the Government published its health strategy in the White Paper "The Health of the Nation" which identifies sexual health as one of the five key areas in which substantial improvement in health could be achieved. The White Paper set a number of relevant objectives and targets, including a reduction in the rate of conceptions among the under 16s by 50% by the year 2000, and lessening the incidence of HIV, AI DS and other sexually transmitted diseases. Education has a vital part to play in achieving these and other Health of the Nation targets: sex education, given within the framework described above, can make a substantial contribution.

10. In primary schools, the Secretary of State considers that very great care should be taken to match any sex education provided to the maturity of the pupils involved, which may not always correspond to their chronological age. It should take account both of their capacity to absorb sensitive information and of the extent to which it is essential for them to have such information at that point in their development. This should be geared to the needs of the class or group as a whole, and should not be determined by the pace of the most precocious pupils whose needs can be met in other ways (see paragraph 31 below). At the primary stage, the aim should be to prepare pupils to cope with the physical and emotional challenges of growing up, and to give them an elementary understanding of human reproduction. Pupils' questions should be answered sensitively: due consideration should be given to any particular religious or cultural factors bearing on the discussion of sexual issues, and to parents' wishes as to the degree of explicitness of the concepts and presentation to be used. Handling of these matters will place demands on teachers' professional skills, which the Secretary of State is confident they will be able to meet.

11. The law does not define the purpose and content of sex education, other than declaring that it includes education about HIV and AIDS and other sexually transmitted diseases. In secondary schools sex education should, in the Secretary of State's view, encompass, in addition to facts about human reproductive processes and behaviour, consideration of the broader emotional and ethical dimensions of sexual attitudes. It must include, at a point appropriate to the age and maturity of the pupils, education about HIV and AIDS and other sexually transmitted diseases. In dealing with these and other sensitive matters, such as contraception and abortion, schools should aim to offer balanced and factual information and to acknowledge the major moral and ethical issues involved. Where schools are founded on specific religious principles, this may have a direct bearing on the manner in which such subjects are presented. The considerations set out in paragraph 10 above will also be relevant at the secondary stage.

12. Special schools have a particularly sensitive role to play. Children with learning difficulties are entitled to the same opportunity as other children to benefit from sex education. They may need more help than others in coping with the physical and emotional aspects of growing up; they may also need more help in learning what sorts of behaviour are and are not acceptable, and in being warned and prepared against unacceptable behaviour by adults. Schools should bear in mind that some parents of children with special educational needs may find it difficult to come to terms with the idea that their children will some day become sexually active.


[page 8]

Developing a school policy on Sex Education

13. The statutory requirements relating to the development of schools' policies on sex education are set out at Annex A. Within this framework, there are distinctive roles for school governors; for school staff; and for local education authorities.

The role of Governors in primary schools

14. Governing bodies of county, controlled and grant-maintained primary schools (including middle schools deemed primary) have the duty to decide:

a. whether their school should provide sex education; and if so
b. what it should consist of, and how it should be organised; and to keep a written record of their decisions.
15. Governing bodies of voluntary aided and special agreement primary schools are not obliged to comply with these detailed requirements, but will need to consider the question of the provision of sex education as part of their wider responsibilities relating to the curriculum offered by their school. The Secretary of State hopes that they will voluntarily adopt similar arrangements to those applying at other maintained primary schools. Furthermore, they will be subject to the requirement in section 241(5) of the Education Act 1993, which applies to the governing bodies of all maintained primary and secondary schools (except special schools - see paragraph 26 and Annex A), to have a written statement of whatever policy they adopt on sex education and to make it available to parents on request.

16. In developing their policies, governing bodies will wish to bear in mind that certain elements of the National Curriculum Science Order are relevant. The Secretary of State will this summer make an Order as required by section 241(4) of the Education Act 1993. The effect of this Order will be to prohibit the teaching, as part of the National Curriculum in Science, of any material on AIDS, HIV, and other sexually transmitted diseases, or any aspect, other than biological aspects, of human sexual behaviour. Accordingly, with effect from September 1994 these topics will not form part of the National Curriculum.

17. There are likely to be further changes to the Science Order from September 1995, following consultation this summer about the revision of the subject Orders generally in the light of Sir Ron Dearing's review of the National Curriculum. However, subject to the outcome of that consultation, the Secretary of State intends that there should continue to be a requirement for pupils at Key Stages 1 and 2 to be taught about human development and reproduction. As for all topics which are specified in the National Curriculum, parents are not entitled to withdraw their children from this teaching.

18. In discharging their duties relating to sex education, governors must take such steps as are reasonably practicable to ensure that any provision they make accords with the requirement of section 46 of the Education (No 2) Act 1986 that it should encourage pupils to have due


[page 9]

regard to moral considerations and the value of family life. They are also required to have regard to any representations made to them by anyone connected with the community served by the school. Governors may wish to take due account of representations or advice they may receive from health authorities and from others, in particular religious groups and ethnic minority communities. In the case of county and controlled schools the governors are statutorily required to consult the head.

19. The Secretary of State expects that governors will draw upon help and guidance from a number of sources. These might include the professional advice which the head and other school staff are able to offer; support and guidance from LEA advisory staff; the experience and expertise of individual members of the governing body; and the views of health authorities, including the school health service, school doctors and nurses. Governors may also find it helpful to take account of the references to sex education in the National Curriculum Council publication "Curriculum guidance 5: Health Education" (NCC, 1990); to family life education in "Curriculum guidance 8: Education for Citizenship" (NCC, 1990); and to moral considerations in the NCC discussion paper "Spiritual and Moral Development" (NCC, 1993).

20. The Secretary of State envisages that governors, as part of their responsibility for deciding policy on the content of any sex education to be offered, will determine their school's overall approach to teaching about sexual matters. In considering the school's choice of teaching materials from the wide range available, they should satisfy themselves that those selected are of high quality, are appropriate to the needs and ages of pupils, and conform with the overall requirements of section 46 of the 1986 Act relating to moral considerations and the value of family life. Governors should also determine how parents are to be consulted and informed, and what opportunities they might have to see teaching materials, and to receive explanations of the way in which it is proposed to use them in the classroom. A number of bodies maintain lists of available materials. Governors should also have a policy - informed by consultation with parents - on whether and how to use outside speakers on particular topics. That policy should include the steps to be taken by the governors or by the head teacher and staff to ensure that any contributions by such speakers are consistent with the governors' overall policy, with statutory requirements and with good educational practice. It should cover the degree of explicitness of content and presentation, and arrangements for the presence or intervention of teachers as appropriate. Finally, the policy should refer to the organisation of sex education, and to the arrangements to be adopted to give effect to parents' right to withdraw their children from all or part of any sex education provided (see paragraphs 36-37). But in all these matters the governors should maintain a distinction between their responsibility for determining general policy and the exercise by the head teacher and staff of their own professional skills in delivering the curriculum in accordance with that policy.

The role of Governors in Secondary schools

21. The governing bodies of all secondary schools (including middle schools deemed secondary) are required to ensure that their schools offer, for all registered pupils (including those over compulsory school age), a programme of sex education including education about HIV and AIDS and other sexually transmitted diseases. They must maintain a written statement of their policy on the provision of sex education, copies of which must be made available to parents on request.


[page 10]

22. In developing a policy on the content of their sex education programmes, including the use of outside speakers and materials, the Secretary of State envisages that governing bodies will wish to take a similar approach to that recommended for primary schools in paragraphs 16-20 above.

23. As indicated in paragraph 16, the Secretary of State will this summer make an Order prohibiting, from September 1994, the teaching, as part of the National Curriculum in Science, of any material on AIDS, HIV, and other sexually transmitted diseases, or any aspect, other than biological aspects, of human sexual behaviour. More generally, as indicated in paragraph 17, the National Curriculum Science Order will be the subject of consultation over the summer with a view to introducing a revised curriculum from September 1995. However, subject to that consultation, the Secretary of State intends that there should continue to be a requirement for pupils at Key Stage 3 to be taught about human reproduction and the physical and emotional changes that take place during adolescence.

24. All secondary schools must ensure that their curriculum deals with the topics specified in the science Order. Again, it is for the governors to decide on its organisation in relation to other aspects of sex education. This will often be more complex than in primary schools. Secondary schools may, for example, deal with all sex education, including the elements outlined above, as a discrete topic; or within broader programmes of personal and social education; or within science education; or they may choose to satisfy the requirements of the Science Order within their teaching of biology, and to deal with wider aspects of sex education in separate lessons.

25. In deciding this, schools will need to take account of the fact that parents have a right to withdraw their children from any or all aspects of sex education (see paragraphs 36-37). In developing a policy on the organisation of the teaching of particular topics, governing bodies should therefore seek the advice of the head and other teaching staff so as to ensure that where children are withdrawn, there is no disruption to other elements of their education.

The role of Governors in special schools

26. In those special schools which cater exclusively for pupils provided with primary education or for those provided with secondary education, the responsibilities of governing bodies correspond to those of primary or secondary school governing bodies respectively, as outlined above. In special schools providing both primary and secondary education, the governing bodies need to adopt separate arrangements for children receiving education in those respective categories, corresponding to those applying to primary schools in the former case and to secondary schools in the latter. In any school, the arrangements adopted will need to take account of any modification of provision entailed by individual pupils' statements of special educational need.

The general role of Governors in all maintained schools

27. All maintained schools must publish in their prospectus a summary of the content and organisation of any sex education they do provide. These should include an explanation of how parents who wish to discuss this issue can do so, and information about the means of putting into effect parents' right of withdrawal.


[page 11]

28. Many parents may find this information adequate. The Secretary of State hopes, however, that governing bodies will involve all parents as fully as possible in the formulation and review of their policies and programmes in this important area, both as a matter of good practice and because such involvement is likely to reduce the number of parents who have sufficiently strong reservations about the schools' programme as to lead them to consider exercising their right of withdrawal. Governing bodies already include some parents. Possible means of bringing all parents into the process include placing the topic in the annual report and on the agenda of the annual governors' meeting for parents; or holding specific meetings at which they are invited to contribute to the review or development of policy and practice on this issue. Particular attention should be paid to the needs of parents from some religious groups and ethnic minority communities who may not be comfortable in dealing with the subject publicly.

The role of the head and other teachers

29. The head and other teachers have an important part to play in contributing to the preparation, review and updating of the governing body's policy on sex education. They will also need to develop suitable procedures for dealing with parental requests for withdrawal, and to decide the alternative arrangements to be made for the supervision or teaching of any pupils whose parents exercise that right.

30. In advising governors on the content and organisation of sex education, the head and teaching staff should give particular attention to the treatment of issues relating to sex education in different areas of the curriculum. It is inevitable, particularly in secondary schools, that the teaching of apparently unrelated topics will occasionally lead to a discussion of aspects of sexual behaviour. Provided that such discussion is relatively limited and set within the context of the other subject concerned, it will not necessarily constitute part of a programme of sex education for the purposes of the provisions set out in Annex A. In such cases, particularly where they involve pupils whose parents have withdrawn them from sex education as such, teachers will need to balance the need to give proper attention to relevant issues with the need to respect pupils' and parents' views and sensitivities. The Secretary of State is confident that teachers will draw upon their professional judgment and common sense to deal effectively with such occurrences. To forestall possible misunderstandings, it may well be helpful to ensure that this issue is covered in the school's written sex education policy.

31. There will be occasions when teachers and other professionals giving sex education have to exercise their discretion and judgement about how to deal with particularly explicit issues raised by an individual pupil. It is unlikely to be appropriate to deal with such issues with the whole class. Teachers should normally discuss the child's concerns first with the parents, to see how they would like the matter to be handled. Where the parents wish them to do so, it may be appropriate to respond individually to the child's question outside the class. In exceptional circumstances, where the teacher has reason to believe that a child may be distressed or in danger, it may be appropriate for the teacher to speak individually to the child, before consulting the parents, to clarify the basis for the concerns. Where there is a risk that a teacher might be compromised in these circumstances, it would be wise for them to be accompanied by another member of staff.


[page 12]

32. In implementing their school's policy on sex education, teachers should take account of the range of expertise and other resources available to them, including the contribution which health authorities, other health service bodies, and health professionals - particularly doctors (including GPs) and school nurses - may be able to make.

The role of the LEA

33. Section 17 of the 1986 Act requires LEAs to determine and state their policies in respect of the secular curriculum for county, controlled and maintained special schools in their area, having considered the range and internal balance of that curriculum. In carrying out that duty, LEAs must have regard to the curriculum responsibilities laid upon them by section 1 of the 1988 Act. Any LEA policy statement which refers to sex education is subject to section 46 of the 1986 Act.

34. The LEA is required, under section 23 of the Education Reform Act 1988, to deal with complaints from parents of pupils at any county, voluntary or maintained special school in its area about that school's discharge of its responsibilities relating to the curriculum, including sex education.





[page 13]

Implementing Sex Education policies and programmes

Information for parents

35. In order to secure maximum support for their programmes of sex education, schools should ensure that both current and prospective parents are fully informed of the content of these programmes and of how they can playa part in influencing the development or review of these. Information about sex education must be included in the school's prospectus; and governors are required to make and keep up to date a statement of their policy on sex education, which must be made freely available to parents. Schools should also ensure that parents understand the right of withdrawal and how to exercise it (see below).

The right of withdrawal

36. Section 241 of the Education Act 1993 gives parents the right to withdraw their children from any or all parts of a school's programme of sex education, other than those elements which are required by the National Curriculum Science Order (see paragraphs 16, 17, 20 and 23-25 above). This parental right of withdrawal extends to all pupils attending maintained schools, including those over compulsory school age. A pupil in the latter category who sought to challenge the parental decision would, if he or she could not resolve the matter with the parents, ultimately have to apply to the courts. The parental right of withdrawal may be exercised by either parent or by a person who has responsibility or care of the child. Any unresolved disputes between them would also have to be referred to the courts. Parents do not have to give reasons for their decision; nor do they have to indicate what other arrangements they intend to make for providing sex education for their children. Once a request that a child be excused has been made, that request must be complied with until the parent changes or revokes it.

37. Schools should therefore ensure that the arrangements they make for the submission of such requests are straightforward and easily understood. They should avoid putting any pressure on parents who decide to exercise this right. They may, however, invite parents voluntarily to indicate their reasons for withdrawal, so that any misunderstandings about the nature of the sex education provided by the school can be resolved. Where a parent wishes to discuss with the school possible ways of providing sex education at home, the Secretary of State hopes that schools will be ready to offer appropriate support, information and help, perhaps by recommending particular written materials on various aspects of sex education (including education about HIV, AIDS and other sexually transmitted diseases) that parents may find helpful.

Advice to individual pupils

38. It is important to distinguish between, on the one hand, the school's function of providing education generally about sexual matters on the basis described above and, on the other, counselling and advice to individual pupils on these issues, particularly if this relates to their own sexual behaviour. Good teachers have always taken a pastoral interest in the


[page 14]

welfare and well-being of pupils. But this function should never trespass on the proper exercise of parental rights and responsibilities.

39. Particular care must be exercised in relation to contraceptive advice to pupils under 16, for whom sexual intercourse is unlawful. The general rule must be that giving an individual pupil advice on such matters without parental knowledge or consent would be an inappropriate exercise of a teacher's professional responsibilities. Teachers are not health professionals, and the legal position of a teacher giving advice in such circumstances has never been tested in the courts.

40. Accordingly a teacher approached by an individual pupil for specific advice on contraception or other aspects of sexual behaviour should, wherever possible, encourage the pupil to seek advice from his or her parents, and, if appropriate, from the relevant health service professional (eg. the pupil's GP or the school doctor or nurse). Where the circumstances are such as to lead the teacher to believe that the pupil has embarked upon, or is contemplating, a course of conduct which is likely to place him or her at moral or physical risk or in breach of the law, the teacher has a general responsibility to ensure that the pupil is aware of the implications and is urged to seek advice as above. In such circumstances, the teacher should inform the head teacher. The head teacher should arrange for the pupil to be counselled if appropriate and, where the pupil is under age, for the parents to be made aware, preferably by the pupil himself or herself (and in that case checking that it has been done). Whether the specialist support services (including school health professionals) or the local education authority should also be involved will depend upon the particular circumstances involved and the professional judgment of the staff.

41. In deciding whether to deal with the provision of individual advice and counselling in their policy on sex education, governing bodies should bear these considerations in mind.

42. Guidance on the action to be taken in cases of suspected child abuse, and the role of schools in educating pupils about how to keep safe, was given in Circular 4/88 and in the booklet on interagency guidance, "Working Together under the Children Act" which was issued in October 1991.

Teacher in-service training

43. Schools will need to review the adequacy of the training which those teachers who have the major responsibility for providing sex education have undertaken. Provision of relevant in-service training and materials in preparation for the new arrangements is eligible for grant support under that part of the 1994-95 Grants for Education Support and Training (GEST) programme covering the basic curriculum, the scope of which has been specifically extended for this purpose. The Department has also been contributing to programmes of governor training: LEAs and schools should consider how best to meet their local needs in this field.


[page 15]

Action

44. Drawing upon the guidance in this circular on their statutory powers and duties and on good practice, schools should take action forthwith to prepare for the introduction of the new arrangements in September 1994. The action needed is summarised below.

Primary schools

45. Governing bodies of county, controlled and grant-maintained primary schools should have a written policy setting out what they have decided in relation to sex education in their school. The governing body of any such school which does not have a policy should now put its development in hand. The Secretary of State hopes that in doing so governors will involve parents as fully as possible; they may also wish to take account of the views of the local health authority and others. They should ensure that their written statement includes, where appropriate, information about the right of withdrawal and how parents may exercise it. Annex C gives guidance on the process of developing or reviewing the school's policy.

46. Governing bodies of voluntary aided and special agreement primary schools are not obliged by law to decide whether to provide sex education or to determine its content and organisation; but the Secretary of State hopes that in practice they will undertake such consideration. Like other primary and secondary schools, they should make a written statement of whatever policy they adopt, and make it available to parents on request.

Secondary schools

47. Governing bodies of all maintained secondary schools should set in hand the review or development of their policy and arrangements for sex education to make sure that they comply with the requirements of the law. Annex C gives guidance. They should ensure that these arrangements are made known to all parents of pupils currently at the school and, through the school's prospectus, to parents who are considering the choice of secondary school for their children.

Special schools

48. Governing bodies of maintained special schools catering exclusively for primary or for secondary age children should take the action outlined in either paragraph 45 or paragraph 47 above, as appropriate. Governing bodies of all-age maintained special schools should take the action outlined in paragraph 47; in addition they should ensure that their written policies explain the different arrangements they have made for children receiving primary education and those receiving secondary education.


[page 16]

All maintained schools

49. In addition, governing bodies of all maintained schools should review their policies and practice on sex education to ensure that they reflect the requirement of section 46 of the 1986 Act and, in the light of their findings, decide whether further action is needed.


TIM LANKESTER





[page 17]

Annex A

Sex Education: Schools' Legal Obligations

Definition of sex education

Section 241(2) of the Education Act 1993 inserts in section 114(1) of the 1944 Act a definition of "sex education" which includes education about HIV and AIDS and other sexually transmitted diseases. The law does not however define what else is included in sex education; and the Secretary of State has no statutory power to prescribe, by subordinate legislation, the content or organisation of sex education.

Primary schools

For county, controlled and maintained special schools section 18(2) of the Education (No 2) Act 1986 requires that:

"The articles of government for every such school shall provide for it to be the duty of the governing body

a. to consider ... the question whether sex education should form part of the secular curriculum for the school; and
b. to make, and keep up-to-date, a separate written statement:

i. of their policy with regard to the content and organisation of the relevant part of the curriculum; or
ii. where they conclude that sex education should not form part of the secular curriculum, of that conclusion.".
Section 18(6) requires that:
"The articles of government for every such school shall provide for it to be the duty of the head teacher, in discharging his duties in relation to the secular curriculum for the school:

c. to ensure that that curriculum:

i. so far as it relates to sex education, is compatible with the governing body's policy (as expressed in their statement ...) except where that policy is incompatible with any part of the syllabus for a course which forms part of that curriculum and leads to a public examination; ... and
ii. is compatible with the enactments relating to education ... ".
These provisions also apply to grant-maintained schools.

For all voluntary aided and special agreement schools, section 19(1) of the 1986 Act requires the articles of government to provide inter alia for the content of the secular curriculum to be under the control of the governing body; for the governing body to have regard to the policy of the local education authority as to the curriculum for the authority's schools; and for the head teacher to be allocated by the governing body such functions as will, subject to the resources available, enable him to determine and organise the curriculum.


[page 18]

Secondary schools

All maintained secondary schools are required under section 2 of the Education Reform Act 1988 (as amended by section 241(1) of the Education Act 1993) to make provision for sex education for all pupils registered at the school.

Middle Schools

A middle school deemed primary under section 1(2) of the Education Act 1964 as amended is treated as a primary school for the purpose of the sex education provisions described above. A middle school deemed secondary is treated as a secondary school.

Special schools

The legal requirements applying to maintained special schools correspond to those for other maintained schools with pupils of the same age. Thus, schools catering exclusively for primary or secondary age pupils are bound by the provisions relating to primary or secondary schools respectively; all-age schools may provide sex education for primary age pupils and must provide it for secondary age pupils.

All maintained schools

Section 1(2) of the Education Reform Act 1988 requires all maintained schools to offer a curriculum which:

"a. promotes the spiritual, moral, cultural, mental and physical development of pupils at the school and of society; and
b. prepares such pupils for the opportunities, responsibilities and experiences of adult life.".
Section 17A of the Education Reform Act 1988 (inserted by section 241(2) of the Education Act 1993) provides that:
"if the parent of any pupil ... requests that he may be wholly or partly excused from receiving sex education at the school, the pupil shall, except in so far as such education is comprised in the National Curriculum, be so excused accordingly until the request is withdrawn.".
Section 46 of the 1986 Act requires that the LEA, the governing body and the head teacher:
"shall take such steps as are reasonably practicable to secure that where sex education is given to any registered pupils at the school it is given in such a manner as to encourage those pupils to have due regard to moral considerations and the value of family life".
Governing bodies of all such schools are required by section 241(5) of the Education Act 1993 to:
"a. make, and keep up to date, a separate written statement of their policy with regard to the provision of sex education, and
b. make copies of the statement available for inspection (at all reasonable times) by parents of registered pupils at the school and provide a copy of the statement free of charge to any such parent who asks for one."

[page 19]

In relation to special schools this only applies in relation to pupils receiving secondary education.

The Education (School Information) Regulations 1993 require all maintained schools to publish in their prospectus a summary of the content and organisation of any sex education they provide.

Other provisions

Section 2 of the Local Government Act 1986 (as amended by section 28 of the Local Government Act 1988) prohibits local authorities from intentionally promoting homosexuality or publishing material with that intention, and from promoting the teaching in any maintained school of the acceptability of homosexuality as a pretended family relationship. This prohibition applies to the activities of local authorities themselves, as distinct from the activities of the governing bodies and staff of schools on their own behalf.





[page 20]

Annex B

A summary of the law on Sexual Behaviour

The following is a summary of the main sexual offences in England.

Unlawful sexual intercourse

It is an offence for a man to have sexual intercourse with a girl under the age of 16. The consent of the girl is immaterial.

Incest

It is an offence for a man to have sexual intercourse with a woman whom he knows to be his granddaughter, daughter, sister or mother. It is an offence for a woman of the age of 16 or over to permit a man whom she knows to be her grandfather, father, brother or son to have sexual intercourse with her by consent.

Rape

It is an offence for a man to rape a woman. A man commits rape if (i) he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it and (ii) at the time he knows that she does not consent to the intercourse or he is reckless as to whether she consents.

Indecent assault

A child under the age of 16 cannot in law give any consent which would prevent an act from being an indecent assault. Both boys and girls over 16 can give consent but, in the case of a girl, that consent can be vitiated in certain circumstances (ie. when there is fraud as to the nature of the act). An assault need not be physical but may consist merely of conduct which causes the victim to apprehend immediate personal violence. The assault must be capable of being considered by right-minded persons as indecent.

Other indecent conduct

It is an offence if a person commits an act of gross indecency with or towards a child under the age of 14. This encompasses conduct of an indecent nature which falls short of assault.

It is an offence to commit buggery with a human being or an animal. This does not apply where two men over the age of 21 consensually commit buggery in private. The age of 21 will be reduced to 18 if and when the Criminal Justice Bill, currently before Parliament, is enacted.

Gross indecency between men is an offence unless the act is committed in private and both parties consent and have attained the age of 21 years. The age limit will change to 18 when the Criminal Justice Bill is enacted.


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Legal capacity

Until recently there was an irrebuttable presumption in law that a boy under the age of 14 is incapable of sexual intercourse. This presumption has now been abolished by section 1 of the Sexual Offences Act 1993 and a boy under the age of 14 can therefore be convicted of rape, buggery or any offence involving sexual intercourse. Until recently it was necessary to prove in the case of child aged between 10 and 14 that he knew that what he was doing was wrong. The Court of Appeal (Criminal Division) have recently held that this rule is no longer to be applied.


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Annex C

Guidance on Good Practice in developing a school Sex Education Policy

The following guidance suggests the processes by which a school governing body might develop or review its policy on sex education. It applies to both primary and secondary schools, although the steps would need to be modified in the case of a primary school which exercised its discretion not to provide sex education.

Eight successive steps are described:

1. Reviewing existing policy and practice
2. Identifying the pupils' needs
3. Identifying staff and wider community needs
4. Drafting the policy or policy changes
5. Consultation
6. Communication
7. Implementing the policy
8. Monitoring the implementation of the policy
Schools may wish to consider whether to assign the first three or four steps to a small group of governors and staff, and to involve a wider group in the remaining steps. Between steps 3 and 4 it will be necessary to reach decisions in principle on the aims and objectives of the policy and the main points of substance to be reflected in the policy statement.




[page 23]

Step 1. Reviewing existing policy and practice

Consider whether existing policy and practice conform to the revised legal requirements for sex education.

Review existing documentation and effectiveness of present arrangements.

Documentation might include

  • policy on sex education
  • other school policies and initiatives eg school ethos, curriculum statement, confidentiality, equal opportunities, school development plan
  • information on content
  • information on how, when, where and by whom sex education is taught, including use of outside speakers and materials
  • scheme of work for sex education
  • procedures for monitoring and review
  • procedures for withdrawal and for advice to individual pupils
  • statement of legal requirements
Evidence of pupils' learning might include
  • feedback on the existing programme both within National Curriculum subjects and within PSE from staff and pupil evaluations
  • reviewing a selection of pupils' work
  • previous reviews of existing provision and lessons
  • OFSTED reports on the quality of learning/teaching in the school and pupils' welfare and guidance
  • comments from LEA inspectors
Evidence of staff confidence in the teaching of sex education might include
  • feedback from staff
  • existing experience and expertise
  • existing training provision
  • staff awareness of systems of support

[page 24]

Step 2. Identifying the pupils' needs

Consider feedback from pupils on their learning needs using questionnaires, discussions etc., which will help to identify

  • pupils' current concerns
  • their existing skills and knowledge
Information from national and local research studies may support/add to school findings or highlight where improvements could be made.

Step 3. Identifying staff and wider community needs

Consider feedback from adults within the school community using questionnaires, discussions etc., which will help identify

  • support for existing programme
  • needs and concerns
  • those who could be involved in future policy development work
from
  • teaching and support staff
  • governors
  • parents
  • health and education professionals
  • religious and ethnic minority groups
Information from national and local research studies may support/add to school findings or highlight where improvements could be made.


[page 25]

Step 4. Drafting the Policy or Policy changes

Decide who will write the first draft eg one individual; several individuals writing a section each. Consider format of draft. (see attached model framework)

Consider

  • purpose, principles, aims and objectives - including moral framework
  • content and coverage of issues listed in Step 1
  • style
  • readability/clarity/accessibility
  • audience(s)
  • support and training implications for staff
  • achievability
Step 5. Consultation

Decide on method and timescale for consultation with:

  • governors
  • staff
  • parents and pupils
Re-draft policy in the light of consultation.

Step 6. Communication

Once agreed, inform all those affected about the content of the policy.

Step 7. Implementing the Policy

Decide who is responsible for its implementation.

Consider the timescale - bearing in mind the need for staff training/INSET.

Consider how implementation will take place eg starting with particular classes or throughout the school.


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Step 8. Monitoring the Implementation of the Policy

Decide who is responsible for monitoring.

Consider how monitoring will take place eg through individual lessons, the programme as a whole, staff feedback, pupil feedback.

Decide to what extent aims and objectives are being achieved.

Decide whether re-drafting is necessary.





[page 27]

MODEL FRAMEWORK FOR WRITTEN POLICY STATEMENT

School Sex Education Policy

Name of School.
Date of Policy.
Member(s) of Staff Responsible.
Review Date.

Description of School

A short description including social, ethnic and religious mix and details of special needs/abilities of pupils.

This section may be useful for those outside the school community who wish to view the policy.

Description of Policy Formation and Consultation Process

The people involved.
The stages/process undertaken.
Issues considered.

Aims and Objectives of School Sex Education Policy

Including their relationship to the schools' aims and existing policies.

Moral and Values Framework

Content Headings for School Sex Education Programme

Equal Opportunities

Including access for early stage bilingual learners.


[page 28]

Organisation of School Sex Education

Name of co-ordinator responsible for planning and delivery.
Who will teach it?
Training provision.
Methodology and approach, including explicitness and handling of controversial topics.
Specific classroom arrangements - eg single sex, mixed.
Curriculum entitlement.
Procedures for reviewing effectiveness of programme.
Resources used and criteria for selection.
Secondary school liaison with primary school feeders to facilitate effective spiral and developmental curriculum (where practical).

Specific issues statements

Contraceptive 'advice', information and referrals to under 16's, (individually and in the classroom).
Confidentiality, (individually and in the classroom).
Child sexual abuse procedure.
Child withdrawal procedures.
Bullying procedure(s).
Complaints procedure.
Procedures for the involvement of health professionals
Procedures for the involvement of visitors
Procedures for supporting any members of the school community infected or affected by HIV.
Working with Parents
Information on procedures for working with and consultation with parents.


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Dissemination of the Policy

Who will receive it?
How will it be made available?

Procedures for Policy Monitoring and Evaluation

Additional information to be appended

For instance, a scheme of work.