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 and have 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.

What is 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.

Birth Registration and Parental Responsibility

Birth registration plays a key role in establishing parental responsibility. For many parents, particularly unmarried fathers, being named on the birth certificate is what grants legal parental rights.

Delays to registration, such as those seen during the Covid-19 pandemic, can therefore affect when and how parental responsibility is acquired. It is important to understand who automatically has parental responsibility and the circumstances in which it can be obtained.

Normally, births have to be registered with the local council within 42 days of the child being born.

Aside from practical issues such as not being able to apply for a passport, this will result in unmarried fathers not having parental responsibility for the child until the birth is registered and only then if they are named on the child’s birth certificate.

The Children Act 1998 abolished the terms of custody, care and control and access and introduced the concept of “parental responsibility” which is defined as “all the rights, duties and powers, responsibilities and authorities which by law a parent has in relation to the child and his property”.

For instance, all people with parental responsibility have the right to be consulted about important decisions in the child’s life, such as education, medical treatment, change of name and trips abroad.

What are My Legal Options in Regards to Parental Responsibility?

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 a form of non-court dispute resolution where you and the other parent would agree to appoint a third party, an arbitrator, to make a decision on schooling for you. You can either agree on 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.

If non-court options like mediation or arbitration do not lead to an agreement, the matter may proceed to court. Understanding what to expect during court proceedings can help parents prepare and make informed decisions about the welfare of their child.

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, an 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 to meet 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.

Before the court can make decisions on issues such as schooling or other disputes, it is crucial to establish who has legal authority over the child. This is where parental responsibility comes in.

Parents may need to formalise their rights through parental responsibility agreements or seek a parental responsibility order from the court, ensuring that they are legally entitled to participate in key decisions affecting their child.

Establishing Parental Responsibility

When disputes over school choice reach the court, it is essential first to establish parental responsibility. This ensures that each parent’s legal rights and duties are recognised before any decision affecting the child is made.

While court applications such as Specific Issue Orders or Prohibited Steps Orders deal with disagreements over decisions like schooling, some parents may first need to establish their legal status in relation to the child. 

This is where parental responsibility agreements and parental responsibility orders become important, as they determine who has the legal authority to be involved in making those key decisions.

Parental responsibility agreements

A parental responsibility agreement must be in a prescribed form and signed by both parties in the presence of a Justice of the Peace or a court official authorised to administer such documents. The mother must produce the full birth certificate and each parent must produce evidence of identity which bears their photograph and signature. The agreement must then be registered at court.

Once a parental responsibility agreement has been made it can only end by:

• An order of the court made on the application of any person who has parental responsibility for the child.
• By an order of the court made on the application of the child with permission of the court.
• When the child reaches the age of 18.

Parental responsibility order

If the father without parental responsibility wants to share parental responsibility with the birth mother and she is not willing to agree to this, the father can apply to court for a parental responsibility order. Such an order will give him joint parental responsibility with the mother.

The court will take into account the principle that the interests of the child are of paramount importance. The court will also consider whether the making of an order is better for the child than making no order at all. Beyond this there are three criteria that have been developed by judges through case law in determining applications for parental responsibility in respect of a child’s father and these are:

• The degree of commitment which the applicant has shown towards the child.
• The degree of attachment which exists between the applicant and the child.
• The reasons for the applicant applying for a parental responsibility order.

Where the court finds that a father’s reasons for wanting parental responsibility are ‘demonstrably improper or wrong’ or that the father intends to use parental responsibility for improper or inappropriate ends, for example, to try to interfere with and possibly undermine the mother’s care of the children, then the court retains the discretion to refuse to make an order.

How TV Edwards 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.

Frequently Asked Questions About Parental Responsibility

How Does Parental Responsibility Work For Same Sex Couples

The law relating to parental rights of same-sex couples is complex and varies depending on the method of having a child and the family structure. While this article does not cover all scenarios, further articles will explore parental rights in more detail. If you are in a same-sex relationship and have questions about parental rights, please contact us on 020 3440 8000.

Who automatically has parental responsibility?

The woman who carries and gives birth to the child has parental responsibility unless it is removed by a Parental Order or adoption. If the birth mother is married or in a civil partnership, her spouse or civil partner will also have parental responsibility.

What if the birth mother is not married or in a civil partnership?

The child’s father will not automatically have parental responsibility. However, a father can acquire parental responsibility in the following ways: Being registered on the birth certificate as the child’s father. Re-registering the child’s birth with the mother if not currently named on the birth certificate. Subsequent marriage or civil partnership to the child’s mother. Entering into a parental responsibility agreement with the parent who has parental responsibility (usually the mother).