Separated couples frequently disagree over a child's
future school, so it is vital to understand the rights of both
parents when this issue arises following a split.
The school a child attends is a huge decision and ordinarily each
person with parental responsibility is entitled to a say in it.
'Parental responsibility' is when a parent or other adult,
such as a guardian, has the right to be involved in major decisions
regarding a child's life. This is not removed automatically
when parents separate. A child's mother has parental
responsibility automatically upon the birth of the child, and can
usually be acquired by the father if he is named on the birth
certificate or is married to the mother of the child, if the child
was born after 1 December 2003.
It is important to note that, in the event that only one person has
parental responsibility for a child, that parent or guardian does
not need to seek consent from any other individual prior to
changing the child's school, subject to other
restrictions.
It is recommended that parents attend mediation where possible and
try to reach an agreement with the input of a mediator. This is a
requirement before any application can be made to the court.
Court proceedings can be costly and time-consuming and it is best
to try and reach an agreement outside of the court arena. Parents
may also wish to consider arbitration, which involves an
independently appointed professional who can assist parents in
forming a binding agreement on what school the child should
attend.
If parents struggle to come to a suitable decision or simply cannot
agree which school is best then it may be necessary to make an
application to the court, so that the court may form a decision
based on the information put forward.
If mediation or arbitration does not work, the next step would be
to apply to the court under a Specific Issue Order, under Section 8
of the Children Act 1989. This will deal with the 'specific
issue' of where the children should attend school in the event
that the parents cannot agree.
It is important to note that the court will require confirmation
that mediation has been attempted, or that the applicant parent or
guardian has attended a Mediation Information and Assessment
Meeting ('MIAM').
A Specific Issue Order can be made by any person with parental
responsibility over that child, and should be made to the court
that is closet to the child's main residence. Once the
application has been received by that court, the court will review
the same and list a hearing whereby both parents would need to
attend. The court will then hear from both parents as to what their
positions are in respect of the school the child shall
attend.
On some occasions, the court may instruct the Children and Family
Court Advisory and Support Service (CAFCASS) to write a report on
the child. This will conclude with recommendations from a
professional as to what school the child should attend based on
their investigations. In order to prepare their report, CAFCASS may
interview the child and/or the parents of the child.
When forming their recommendations for the court to consider,
CAFCASS applies the 'welfare checklist' which is under
section 1(3) of the Children Act 1989.
This will consider:
- The wishes of the relevant child
- The needs of the relevant child
- How the change in circumstances is likely to impact the child
- Characteristics of the child including their age, sex and background
- Whether the child is at risk of harm or is suffering from harm
- Whether the parents are capable of satisfying the needs of the child
- What power the court has to make particular decisions in the circumstances
If you have been affected by any of the issues raised by this
article, please contact our expert family and childcare team for
advice. Your call will be treated sensitively and in the strictest
confidence.
Our family department is ranked and recommended in the prestigious
Legal 500 guide for the quality of solicitors as well as its
diversity of experience across the firm.
Originally published 18 April 2023.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.