News & Insights

Parents will always strive to do what is best for their children, but for separated parents this can sometimes lead to disagreement when what is considered best by one parent is not a view shared by the other parent.

Parents may have had different experiences of education, with each feeling that their schooling worked for them and will be best for their child.  Disagreements can arise over nursery, primary, and secondary schooling and whether your children should be home-schooled or whether a child should go to university.

It is always best to keep communication with your former partner open and see if an agreement can be reached amicably using mediation and including consultation with the relevant child if they are of an age and understanding to be able to contribute to the discussion.  If you have tried this but have been unable to reach an agreement, you may be concerned as to who has the final say on schooling matters.

Parental responsibility

The first thing to check is if you both have parental responsibility.  Anyone with parental responsibility for a child will have a say on the school their child should attend.

Birth mothers hold parental responsibility as do married fathers or fathers named on their child’s birth certificate since 1 December 2003 so now applicable to virtually all children

There are other circumstances in which parental responsibility may have been acquired such as by court order or a parental responsibility agreement including those with step-parents.

Legal options

If agreement cannot be reached between parents who both have parental responsibility then one option is to apply to the Family Court and let a judge decide what should happen because whilst there is a right of independent action by either parent when they have knowledge of the objection of the other they are stymied and neither may act.  When applying to court you may want to seek one or both of the following types of court order under s.8 The Children Act 1989:

• Specific issue order – This is when you apply to the court asking a specific question. In this scenario it may be that you will be asking the court to determine which school your children should attend.
• Prohibited steps order – This is when you apply to the court asking it to prevent someone with parental responsibility for your child from taking a certain action with your child. In this scenario it may be that you are asking the court to prevent your former partner from moving your child to a new school.

What will the court consider?

As with any dispute under Part II of The Children Act 1989, the court’s paramount consideration must be the welfare of the child.  The law sets out a checklist of issues the court must consider known as the welfare checklist, set out in s.1(1) of the Act and it covers a number of aspects, including:

• the child’s wishes and feelings according to their age and understanding;
• the age, sex and characteristics of the child;
• their physical, educational and emotional needs;
• the likely effect on them of a change in circumstances; and
• if they are at risk of suffering harm.

When it comes to a child’s schooling it is important to look at if there are any special educational needs and, if so, how these could best be met.  A statement of needs may be beneficial or a report from the child’s social worker if they have one.

Most children will not have any special educational needs and the question over schooling may be about preference.  In that case, the court will look at all the circumstances in the round including the school’s facilities, how the child will travel to and from school and depending on the child’s age their own wishes and feelings on which school they should attend as well as any independent evidence available as to the performance of any given school such as a recent Ofsted report.

The court may seek a CAFCASS report into the children’s wishes and feelings if they are old enough to provide them.  A child’s view will likely be taken into account from when they are around six or seven years old provided they have sufficient understanding.  Often children will have a view influenced typically by where their close friends are going to school.  Their wishes and feelings are only one factor and will not always be in line with what a court decides is best for their welfare but as has been frequently referred to in the courts since Lord Denning said in 1970 of parental responsibility generally over the lifetime of a child “It starts with a [power] of control and ends with little more than advice”.

Contact us

For further advice please contact one of our Family Law experts.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.