Info & Advice

What happens if my ex and I cannot agree on which school our child should attend?

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Deciding which school your children should attend can be a herculean task when you and your partner get along, but it can be even more challenging for separated or divorced parents. This can be an additional source of tension and lead to disagreements when your views on your child’s education differ. But what happens if you and your ex cannot agree which school the children should attend? This article aims to answer your questions.

Parental Responsibility

It is important to say that any parent holding parental responsibility has a duty to consult with any other PR holder about where their child will go to school. A child’s mother automatically acquires parental responsibility when the child is born, and a father married to the child’s mother at the time of its birth will also automatically acquire it in the same way. An unmarried father will have PR if they are named on the child’s birth certificate.

Family mediation

If parents cannot agree about the choice of school, it is sensible, in the first instance, to consider attending family mediation. This may make it possible to resolve matters by agreement without going to court. Other alternative dispute resolution methods include arbitration, where an independent arbitrator is jointly appointed by both parties via their solicitors to determine the dispute in a legally binding manner.

Before any court application can be made, the parent applying must have attempted mediation or attended a MIAM (Mediation Information and Assessment Meeting), or meet one of the exemptions under the court rules.

If issues cannot be resolved, or if the matter is not suitable for mediation, the last resort will be for one parent to make an application for a Specific Issue Order. In this type of application, issues are narrowed to only determining the choice of school, although the court has a wide discretion to make any order it thinks serves the best interests of the child. For example, if circumstances warrant it, the court could make a Prohibited Steps Order which would prevent one parent unilaterally moving the child to another school without the other parent’s consent.

Making an application to the court

Any application should be made to the local family court nearest to where the child lives. Once it is made, the court will list the matter for a first hearing, where the judge will guide the parties in terms of next steps, such as the parents filing a statement setting out their case and reasons for the child attending or not attending a particular school.

In some cases, the court may decide to instruct CAFCASS (The Children and Family Court Advisory and Support Service), to prepare a report for the court surrounding which school they believe the child should attend. Depending on the child’s age, it may also be appropriate for the court to consider their wishes and feelings on the matter.

What does the court consider when deciding which school a child should attend?

The court and CAFCASS, if they are appointed, consider the welfare checklist contained in section1(3) of the Children Act 1989. This helps to formulate their decision about the school the child should attend. The welfare checklist looks at:

  • The ascertainable wishes and feeling of the child
  • The child’s physical, emotional, and educational needs
  • The likely effect on the child if circumstances changed as a result of the court’s decision
  • The child’s age, sex, background, and any other characteristics which are relevant to the court’s decision
  • Any harm the child has suffered or is at risk of suffering
  • Capability of the child’s parents in meeting the child’s needs (or any other person the court believes is relevant)
  • The powers available to the court in the proceedings in question

The court will also use this checklist if the application concerns a Prohibited Steps Order preventing a change to the child’s school.

Does my ex have the right to choose the school even if I have day-to-day care of our child?

Deciding what school a child should attend is a standalone issue regardless of who has primary care responsibilities. If the other parent has parental responsibility, they have a right to decide how the children are educated and where, unless there are exceptional circumstances.

If only one parent has parental responsibility, they will not need consent from anyone else. However, if the other parent without parental responsibility is involved in the child’s life, informing them about any changes respects the role they have in the child’s life.

As already stated, mothers have parental responsibility the moment the child is born, whereas fathers may not. Situations where a father may not have parental responsibility and therefore won’t have a say in the schooling include:

  • When the father isn’t married to the child’s mother and wasn’t at the time of the child’s birth
  • When the father isn’t included on the birth certificate

What can I do if my ex has changed our child’s school without my permission?

If the other parent has already enrolled the child in school and the change has been effected without first obtaining consent from those with parental responsibility, action can still be taken. However, this is not as straightforward as stopping it happening. This is because once a child is enrolled in school, the place at their previous school will be vacated and offered to another child on the waiting list (if there is one). If this happens, it may mean there is no place available for your child to return to. Another consideration is that of the child, constant upheaval between schools is not in a child’s best interests, and perhaps requires some compromise between both parents to reach a decision that puts the child first.

If you are determined to challenge the change of school, you will need to attend a MIAM before making your application. The judge will take into account the welfare checklist as detailed above when making their decision.

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