Deciding which school to send your children to is an important decision for any parent. Sometimes parents, often those who have separated, disagree when it comes to school choice for their children.

Each parent may have had very different experiences of education and disagreements arise where what is best for their child in one parent’s eyes does not align with the other parent’s view. If you have tried yet been unable to reach an agreement on schooling for your child, you may be concerned as to who is entitled to make the final decision. The first thing to check is if you both have parental responsibility.

Parental responsibility is a legal concept which refers to the rights, duties and responsibilities that a parent has towards a child. Where both parents have parental responsibility, they both have a say in the choice of school and other important decisions regarding their child’s education.

Do I have parental responsibility?

A child’s birth mother will always automatically have parental responsibility.

If you are a father, you will have automatic parental responsibility if you were married to the child’s mother at the time of the child’s birth or your name appears on the birth certificate.

Same-sex partners will have parental responsibility, if you were married, or in a civil partnership, at the time of the fertility treatment and satisfy the conditions of Human Fertilisation and Embryology Act 2008.

Adopted parents have parental responsibility from the date of the Adoption Order. The Adoption Order also removes parental responsibility from the birth mother and anyone else who previously had it.

If you don’t automatically have parental responsibility, you can obtain it by entering into a parental responsibility agreement or you can apply for a parental responsibility order through the court.

Legal options

Ultimately the court can make decisions about where a child should go to school but there are a number of steps to consider before making an application to the court.

TV Edwards experienced family lawyers will be able to advise you on your options including alternatives to court, for example mediation or arbitration. We can also negotiate on your behalf on school choice with the other parent or their legal advisor to see if you can reach an agreement.

In most cases, before any application to court, it’s mandatory to attend an initial Mediation Information and Assessment Meeting (MIAM). You can either go to the MIAM alone or with the other parent if you both agree to attend together. At the MIAM a specially qualified family mediator will provide you with information about the options available for non-court resolution and discuss the advantages and disadvantages with you. The purpose of the MIAM is to determine whether non-court resolution is appropriate and gauge whether it’s possible to resolve the issue without court intervention.

Family arbitration, for example, is of form of non-court dispute resolution where you and the other parent would enter into an agreement to appoint a third party, an arbitrator, to make a decision on schooling for you. You can either agree the choice of arbitrator or you can ask the Institute of Family Law Arbitrators (IFLA) to choose one for you. You and the other parent also have control over deciding how the proceedings will run, for example, choosing the venue, whether to meet face to face or each put your case forward through writing only. Where arbitration is agreed, the flexibility and the fact that you will get a final decision much more quickly can make arbitration more cost-effective than court.

The last resort for parents who disagree on school choice for their children is to make an application to court, you may want to seek a Specific Issue Order and/or Prohibited Steps Order. An application can be made for either or both orders, depending on what is most appropriate for your circumstances.

Specific Issue Order: This is an application to the court for an order which deals with something specific in respect of a child, which can include deciding on which school the child attends.

Prohibited Steps Order: This is an application to the court for an order to stop someone from exercising their parental responsibility in a particular way, which can include asking the court to prevent your former partner from moving your child to a new school.

What to expect at court

The court should issue the application on an urgent basis, depending on the timescales involved, and list an initial hearing.

This initial hearing is known as a First Hearing Dispute Resolution Appointment (FHDRA). The Court will look at what the issues are and give directions about how the case should proceed. Often each parent is directed to produce a witness statement.

The Children and Family Court Advisory and Support Services (Cafcass) will undertake safeguarding checks and may be asked to prepare a report for the court. Cafcass is an independent body that advises the courts on what is considered to be in the best interests of individual children involved in family proceedings. The Cafcass officer may speak to your child to ascertain their wishes and feelings (if your child is old enough and able to make their wishes and feelings reasonably clear).

Often, agreement is reached when both parents have seen the report prepared by Cafcass. However, if there is no agreement the case will proceed to a final hearing. The Court will hear the evidence from the parties involved, the Cafcass officer, and other experts (if required) to make a binding decision.

The court’s paramount consideration is the welfare of the child. Section 1(3) of the Children Act 1989 contains a list of factors the court should consider when determining any question in respect of the upbringing of a child. This is known as the ‘welfare checklist’ and includes consideration of:

• the ascertainable wishes and feelings of the child;
• the child’s physical, emotional and educational needs;
• the likely effect of any change in circumstances;
• the child’s age, sex, background and any characteristics which the court considers relevant;
• any harm which the child has suffered or is at risk of suffering; and
• the ability of each parent of meeting the child’s needs.

The Court must also be satisfied that making the order is better for the child than not making any order at all.

How we can help?

TV Edwards’ expert family team are on hand to help you navigate the law around parental responsibility and your children’s education and schooling. Our approach is always child focused and our clients always come first. We focus on delivering affordable, first-class legal services, with exceptional levels of client service.

Please contact the team by emailing family@tvedwards.com or call 0203 440 8000.

Disclaimer: The information on the TV Edwards website is for general information only and reflects the position at the date of publication.