What happens when separated parents are unable to agree which school their child should attend?
5th October, 2022
For all parents, the search for the right school for their children can be tough. The school admissions window for 2023/2024 is well underway, with the closing dates for applications being Monday 31 October 2022.
It can be difficult to choose which school your children attend, with worries about Ofsted ratings, location, catchment areas and the culture of the school. However, for parents who have separated, child arrangement issues can often be a cause of disagreement, causing this process to be even more difficult. In an ideal situation, both parents will discuss and agree upon which school their child will go to, but what happens when parents don’t agree?
The first step is to understand who has parental responsibility. The legal position is that a birth mother automatically has parental responsibility for a child, and a father automatically has parental responsibility if he is married to the mother at the time of the birth. If the parents are not married, the father will have parental responsibility if he is named on the child’s birth certificate (after 2003), or has obtained a parental responsibility order. Where both parents share parental responsibility, they are both responsible for choosing and providing their child’s education.
Firstly, we would advise that both parents attend open days where possible for all schools that either parent is interested in, and to keep an open mind when doing so. This can help parents to get a better feel for the school, allowing both parents to weigh up the pros and cons and voice any concerns, and may help you to come to an agreement. For children who are going to secondary school, it can be a good idea to involve them and consider their opinions when making a decision. Consideration should also be given to school facilities, travel, and how child arrangements will work around school time.
How would the court become involved and what will they consider?
If parents still cannot agree, then an application will have to be made to the court for a judge to determine which school the child will attend. However, prior to issuing court proceedings the applicant will usually need to attend a Mediation Information Assessment Meeting (MIAM) which is provided by an independent qualified Family Mediator. Your solicitor can guide you on whether this is required.
If mediation is not suitable, then an application would need to be made to the court. Parents can make an application to the court for one or both of the following:
- Prohibited Steps Order. This prohibits a parent from exercising elements of their parental responsibility, such as forbidding a child from moving schools; and/or
- Specific Issue Order. This is where the court determines a specific question or point regarding a child, such as stating a child should attend a particular school.
The family court will consider, and be guided by, the welfare checklist that is set out in Section 1(3) of the Children Act 1989 when reaching a decision about a child’s school, including the child’s physical, emotional and educational needs, and their age, sex, and background (see here for a full list). The best interests and the welfare of the child will always be the court’s overriding consideration.
If you need any advice regarding the school admissions procedure, the mediation process or with a court application, please get in touch with our specialist family solicitors for more information.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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