Solicitor Catherine Currie, in our leading Family Law team, looks at what happens next when separated or divorced parents disagree over their child's schooling.
For all parents, the search for a good school and the right one for their child(ren) can be stressful. What type of school should they go to? Is the location right? Will their child get a place? Will their child be happy there? Add to the mix a separated couple, who may already have quite conflicting views on matters, and the whole process can be very difficult indeed.
As the school summer holidays begin, it seems a fitting time to look at the topic of how separated parents can deal with disputes over which school their child attends.
The law
As parents you have ‘parental responsibility’ for a child – this means that you are entitled to make decisions about their education, including which school they attend. Parental responsibility also covers areas such as medical treatment, choice of religion and a change of surname - even after you separate or divorce.
The legal position is that a birth mother automatically has parental responsibility for a child. A father has parental responsibility if he is married to the mother at the time of the child’s birth. If the parents are unmarried, the father can acquire parental responsibility if he is registered on the child's birth certificate as their father (after 2003). He can also obtain parental responsibility by applying for a Court order or entering into a parental responsibility agreement with the mother.
It is rare for parental responsibility to be ‘taken away’ from a parent – this would only be in unusual or extreme circumstances where it was deemed to be in the child’s best interests.
Parents are therefore generally expected to discuss and agree upon important decisions relating to their child’s education together. However, sometimes parents do not see eye to eye or one parent makes a unilateral decision on a child’s schooling without the other’s consent.
What happens if you cannot reach an agreement about the school?
Firstly, it is important to seek advice early on. It may be that your case is suitable for mediation in which case that might be a very helpful place to start. The mediator would be a trained, independent third party who can help talk through the various views each parent has and try and assist the parties come to an agreement together.
If mediation is not suitable, or perhaps it is a very time sensitive issue, specific legal advice should be sought. This is where we can assist you by talking through your options and the next steps. It may be that we are able to communicate with your former partner to try and reach an amicable agreement or failing that, assist you in making a Court application.
How could the Court become involved?
If you and your former partner cannot reach an agreement concerning your child’s schooling, then the two main Court orders which would likely be sought are either a Specific Issue Order or a Prohibited Steps Order. An application for one of these can be filed in conjunction with an application for a ‘Child Arrangements Order’ – which deals with general arrangements for where the child should live.
Generally, parents are expected to explore mediation first prior to making any Court application, unless the issue is urgent or special exemptions apply.
An application for a Specific Issue Order can be made to deal with a specific matter concerning a child. For example, deciding what school the child should attend.
An application for a Prohibited Steps Order can be made to stop the other parent exercising their parental responsibility unilaterally. For example, if a parent has taken a child out of their school or has threatened to do so.
It may be that an application for both Orders is necessary in some cases.
What will the Court consider?
As in all applications made to the Court concerning children, the Court’s paramount concern will be the welfare of the child and what is in their best interests. They will consider a range of matters in making the decision about a child’s school or school move which fall under Section 1(3) of the Children Act 1989. This includes the wishes and feelings of the child (which will depend on their age and understanding), their physical, emotional and educational needs, the effect of the change, their age sex and background, any harm which the child has/may suffer and how the parents are capable of meeting their needs.
Below are some of the considerations which should be at the forefront of a parent’s mind when looking at decisions concerning the child’s school and education or in the event an application is made to determine this:
- How will the change affect your child?
- Does the school offer better opportunities/facilities/Ofsted standards? Details of the new school should be obtained and visits carried out and this information shared with the other parent.
- Will the location be an issue in terms of child arrangements?
- Can both parents still easily get to school for collection and drop off?
- Will changing schools have a financial impact on you/the family?
- What does your child think about the move?
- What is the objection to the school your ex-partner has suggested or moved the child to?
The Court will want to listen to both parents’ views and ensure that any Order they make will be in the child’s best interests.
If you think you may need assistance because you have a potential disagreement with your ex-partner about your child’s schooling or education, our specialist Family Law team is here to advise and guide you.
For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800.
This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.
