Parental decisions about your child's education.
Here is some helpful information for parents of school-age children who might be separated or divorced and not agreeing on their child's next step in education.
Now that your children are back to school after the half term holidays, you will be thinking about making applications towards the end of October for schools for next year (starting September 2024) - be it independent school or local state school, 4+, 7+, 11+, 13+ or even Sixth Form applications. Your child’s academic future involves lots of important decision making which is stressful enough without you and your partner/spouse disagreeing on the school which you are to send your child to.
Can my partner/spouse make decisions about my child's education without informing me?
The decision on where a child is educated requires the consent of all holders of parental responsibility. Parental responsibility is the rights and duties that holders (typically parents) exercise on behalf of children. Day to day decisions can be taken by a holder of parental responsibility without reference to other holders, but important decisions, including change of a child’s school, must be taken collectively by all holders of parental responsibility.
An important preliminary step therefore is to establish who has parental responsibility. Mothers automatically have parental responsibility by virtue of giving birth to their children. Fathers who are married to the mother of their child at the time of their birth also automatically have parental responsibility. However, if the parents were not married at the time that the child was born, the father will have parental responsibility if he is named as the father on the birth certificate or if he has obtained a parental responsibility order.
Therefore, if you and partner/spouse have parental responsibility, both the decision to remove your child from their existing school, and what school they attend thereafter, will require your express consent.
Reasons why you may disagree about your child’s education and how to resolve disagreements
You and your partner/spouse may disagree on whether to send your child to an independent or state school, whether they should attend a faith based school or even which independent, boarding or grammar schools they apply for.
If you and your partner/spouse cannot agree on what school your child is to attend, the last resort is making an application to the court to ask that they make the decision about which school your child attends. This is called a ‘specific issue order’ application.
How the Court will determine an application to determine where your child will go to school
If you end up in a position where you need the court’s assistance to determine which school your child goes to, you will need to make an application to the Family Court nearest to where your child lives. Once you have made your application, the Court will set various deadlines for next steps including you and your partner/spouse filing witness statements setting out each of your cases on why your child should or should not attend a particular school.
The Court will consider the factors contained within the ‘welfare checklist’ under section 1(3) of the Children Act 1989 during the decision making process to ensure that your child’s best interests are at the forefront when making a decision about the school your child shall attend. This involves considering, amongst other things:
1.The ascertainable wishes and feelings of the child concerned – if you are making an application with regard to your secondary school aged child, their wishes and feelings about which school they wish to attend would be considered more than the wishes and feelings of a young primary school aged child.
2.The child’s physical, emotional and education needs – if your child has certain educational needs and one of the schools in dispute between you and your partner/spouse has particular expertise with these needs, then this factor will be considered in the court’s decision making.
The other factors which the court will consider are:
1.The likely effect on the child if circumstances changed as a result of the court’s decision;
2.The child’s age, sex, backgrounds and any other characteristics which will be relevant to the court’s decision;
3.Any harm the child has suffered or maybe at risk of suffering;
4.Capability of the child’s parents (or any other person the courts find relevant) at meeting the child’s needs; and
5.The powers available to the court in the given proceedings.
Once the Court has considered the factors above, a decision will be made as to the school that your child shall attend.
By Shivani Kerai
Associate at Payne Hicks Beach
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