Are you in a dispute about which school to send your child to?
Linzi Perriman advises how the court can make a decision, in the absence of agreement.
When it comes to choosing and providing education for your child(ren) all those with parental responsibility have to be in agreement with those choices and any other significant decisions affecting the child(ren). In the absence of agreement, the court can make a decision.
Who do you need to consult?
The first step is to determine who has parental responsibility (PR) for your child(ren):
- Mothers automatically have PR;
- A father will have it if he:
- Is married to the mother;
- Is named on the birth certificate after 1 December 2003;
- Has a parental responsibility agreement with the mother;
- Has an order from the court granting it;
- Same-sex partners will both have parental responsibility if they were civil partners or married at the time of the treatment e.g. donor insemination or fertility treatment;
- For same-sex partners who are not civil partners, the second parent can obtain parental responsibility by either applying for it if a parental agreement was made, by becoming a civil partner/getting married and making a parental responsibility agreement or jointly registering the birth.
For more information, see our article on who is a legal parent and who has parental responsibility.
What happens if you cannot agree?
If you’re not in agreement about the choice of schooling and you’ve exhausted non-court based dispute resolution options mentioned below, then an application to court for a specific issue order will need to be made if you want the court to determine this specific issue.
In contrast, if you know the other parent has enrolled a child into a school that you do not consent to and talking to them/non-court based options haven’t worked, you should make an application to the court for a specific issue order and a prohibited steps order to prevent the child from attending the school until the matter has been determined by the court.
What should I do?
You should discuss with the other parent the reasons why you want the child to attend your choice of school either face-to-face, with a mutual (and neutral) friend or via mediation.
Non-court based dispute resolution
Information about non-court based methods of dispute resolution, such as family mediation and collaborative law, can be found in this podcast.
If mediation isn’t appropriate in your case and you’ve endeavoured to express your views and are no further forward, you could try setting out your position in solicitor correspondence or solicitor led mediation. Early legal advice is recommended.
If you’ve considered other dispute resolution methods such as collaborative law and ruled these as not suitable for your situation, you will need to issue an application to court (or arbitration) for a specific issue order inviting the court/arbitrator to make an order that the child attends your choice of schooling on the basis that it is in their best interests.
- Seek legal advice at the earliest possible opportunity.
- Document your discussions with the other parent, ideally putting forward your school choices, with reasons, via email and register the other parent’s concerns/think about how you can address these. Is there anything you can do to alleviate these? If the change of schooling affects the arrangements for the child, can these be altered by agreement? If the school is fee-paying, what are your proposals for paying the costs?
- Listen to your child about where they wish to attend school, because if a CAFCASS officer (Children and Family Court Advisory and Support Service) is appointed, it is likely they will try and ascertain your child’s wishes and feelings, particularly if your child is approaching or at secondary school level. The child’s wishes and feelings tend to be more persuasive to a court, the older the child. There is no guarantee, however, that the court will order such a report in every case.
- If possible, make sure your child voices their preferences to an independent third party such as a teacher, so that if the court asks them to provide a report, this information will be included.
- Make sure you have visited the school you are advancing with your child and have details such as the school prospectus, Ofsted rankings/reports and details of extra-curricular activities offered. You should also have attended alternative schools, have details of those and be able to explain why you do not want your child to attend those schools, or why they are your second/third choices as opposed to your first.
- If you know the other parent has enrolled the child in a school against your wishes, you need to urgently contact the child’s current school and the local education authority to make them aware of the situation and the fact you do not consent to the change of schooling.
- If you’re objecting to the choice of schooling, you should ensure you have properly considered all schools in the area and have fully thought out reasons for your objections. You must also have ascertained your preference for which school your child should go to and why. You should also talk to your child in an appropriate manner. Is it a genuine desire on their part to attend that school, or do you suspect they have been heavily influenced by the other parent?
The information you gather above can help to prepare a comprehensive application for a change of schooling which will make your position more compelling.
What will the court consider?
The court’s paramount consideration is always to consider what is in the best interests of the child and in the case of a change of school, they will look at what the potential benefits might be of moving school, taking into account the information provided above.
In assessing the best interests of the child, the court is guided by the welfare checklist which can be found in the Children Act 1989 and comprises the following:
- The ascertainable wishes and feelings of the child concerned, considered in the light of their age and understanding;
- Their physical, emotional and educational needs;
- The likely effect on them of any change in their circumstances;
- Their age, sex, background and any characteristics of them which the court considers relevant;
- Any harm which they have suffered or are at risk of suffering;
- How capable each of their parents, and any other parent in relation to whom the court considers the question to be relevant, is of meeting their needs.
Each case is fact-dependent, and will involve a detailed analysis of what is in your child’s best interests.
Giving early thought to your child’s education is critical. You must consider all options carefully and be able to articulate why a choice is appropriate or inappropriate for your child.
Early legal advice about the strategy and process to follow can be key. For more information, please contact our family law solicitors.