Back to School: Who Decides Where a Child Goes to School After Separation?

With the new school year fast approaching, many families will be preparing for their children's return to school. For separated parents, however, deciding which school a child should attend can become a source of conflict. In this article, we explain the legal position and the steps that can be taken where agreement cannot be reached.

Parental Responsibility

Parental responsibility is defined in section 3 of the Children Act 1989 as “the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.”

A child’s mother automatically acquires parental responsibility from birth. A child’s father will have parental responsibility if:

1. He was married to the child’s mother at the time of the child’s birth;
2. He is named on the child’s birth certificate; or
3. If the parents were not married at the time of the child’s birth, a father can obtain parental responsibility by:
   • Being registered as the child’s father under the relevant birth registration legislation;
   • Entering into a parental responsibility agreement with the child’s mother; or
   • Obtaining a court order confirming the father has parental responsibility.

Those with parental responsibility should be consulted in relation to significant decisions affecting a child's upbringing, including but not limited to decisions about education, medical treatment and where a child lives. Where both parents have parental responsibility, significant decisions relating to the child's upbringing should not be made unilaterally without first consulting the other parent.

How to Resolve a Disagreement

If you find yourself unable to agree on which school your child should attend, there are a number of ways in which the dispute can be resolved. Before turning to the court process, parents are expected to consider non-court dispute resolution ("NCDR"). NCDR can take a variety of forms, including mediation, arbitration, a round table meeting and early neutral evaluation. In some cases, progress can also be made via solicitor correspondence.

Where these methods do not result in a resolution, an application can be made to the Family Court for a Specific Issue Order. This is an order under the Children Act 1989 asking the court to determine a specific aspect of a child's upbringing, such as which school they should attend.

Before making a court application, a prospective applicant will usually be required to attend a Mediation Information and Assessment Meeting ("MIAM"). This is an initial meeting with an accredited mediator, who will assess whether the dispute may be suitable for mediation and explain the available options. The mediator will also invite the other parent to participate in mediation. If mediation is unsuccessful or considered unsuitable, the mediator will provide a MIAM certificate, enabling the court application to be made.

There are, however, several exemptions to the MIAM requirement, including where there is a history of domestic abuse, where a MIAM has already been attended within the past four months or where the application is considered urgent.

Factors to be Considered

When making any decision regarding a child, including which school they should attend, the court’s paramount consideration is the child’s welfare, as set out in section 1 of the Children Act 1989. In doing so, the court will apply the welfare checklist, and consider the following:

• The child’s ascertainable wishes and feelings;
• Their physical, emotional and educational needs;
• The likely effect on them of any change in circumstances;
• Their age, sex, background and any characteristics which the court considers relevant;
• Any harm which they have suffered or is at risk of suffering;
• The capability of their parents, and any other person in relation to whom the court considers the question to be relevant, of meeting their needs; and
• The range of powers available to the court.

It is therefore important to ensure that these factors are carefully considered when making any proposal or court application, to ensure any decision made is in the child’s best interest.

As part of the court's decision-making process, each party will be expected to explain which school they propose the child should attend and the reasons for that proposal. Supporting evidence may include information about the location of the school, its academic performance, pastoral support, extra-curricular opportunities, and, where applicable, school fees and how they will be funded.

If court proceedings are issued, the Children and Family Court Advisory and Support Service (“Cafcass”) will carry out safeguarding enquiries and prepare an initial safeguarding letter for the court. This will provide information arising from the safeguarding checks and may include recommendations about how the case should progress.

In most cases, the court will direct Cafcass to prepare a section 7 welfare report. This is a more detailed assessment of the child's circumstances, what the parties’ respective positions are, and what would be in the child’s best interest. In preparing the report, the Cafcass advisor will consider the welfare checklist, set out above, and may speak directly with the child in order to ascertain their wishes and feelings, where appropriate depending on their age. Whilst the recommendations of Cafcass are not binding on the court, they are often given significant weight when determining what arrangements are in a child's best interests.

Speak to Our Team

Whilst disagreements about a child's education can be stressful, it is important for parents to remember that the focus should remain on what is in the child's best interests. If possible, parents should try to reach an agreement outside of the court arena. However, where agreement cannot be reached, the court can be asked to determine the issue. It tends to be best to deal with these issues openly and promptly to limit any impact on the child.

If you are experiencing a dispute regarding your child's choice of school or any other issue regarding the arrangements for your child, please do not hesitate to contact us on 01625 544 650 or fill out our contact form.