It is common for separated parents to disagree about the school their children should attend, particularly if the separation has precipitated a house move. And deciding where a child should be educated is one of the most important decisions a parent can make. But can one parent arbitrarily change their child’s school? And what can the other parent do if they have? This guide discusses these issues and more.
The significance of parental responsibility
Essentially, if both parents hold parental responsibility for the child, whether they were married, in a civil partnership or cohabiting, consent should be sought before any attempt is made to move the child to another school. Mothers automatically have parental responsibility and fathers acquire it by either being named on the child’s birth certificate (after 1st December 2003) by entering into a parental responsibility agreement, court order, or by being married to the child’s mother.
If a parent does not have parental responsibility for a child, then theoretically, it is perfectly possible for the parent with care to move the child to another school without obtaining prior consent. In that case, it would mean that the objecting parent would need to make an application to court for a Specific Issue or Prohibited Steps Order. A specific issue order is limited to the issue in question, whilst a prohibited steps order typically prevents the exercise of parental responsibility – in this case, moving schools. These applications and court considerations are discussed in further detail below.
Are there any initial steps that can be taken if we disagree?
If a dispute arises, you should try to talk the issues through with the other parent to see if you can resolve the matter. In most cases, an amicable solution can be found, and as part of this process, you may consider using a family mediation service. Mediation is flexible and there is no limit to the number of sessions it takes to explore all the issues and discuss the various options. If appropriate, and the child is old enough, they can attend and have their views heard. A mediation plan or agreement based on the discussions can be drafted, although this will not be legally binding.
If it is likely the matter will end in court proceedings, there is a requirement for both parties to attend a MIAM (Mediation Information and Assessment meeting) before making an application to court.
What things does the court consider?
Regarding changing a child’s school, as stated above, there are two applications that may be made under s8 of the Children Act 1989, namely a Specific Issue Order or Prohibited Steps Order.
Both of the above orders can be made at the same time, or during an application for a Child Arrangements Order. In an application relating to schooling issues, parents should think about how a change may affect their child and whether this will have a positive or negative impact. This is likely to be a key factor in any decision of the court.
There are occasions when the court will instruct a CAFCASS (the Children and Family Court Advisory and Support Service) officer to prepare a report for the court containing their recommendations. If the child is of an age where is it deemed appropriate for the court to consider their wishes and feelings, these will be canvassed and detailed in the report.
In addition, both CAFCASS and the court will take into account the “welfare checklist” under s1(3) of the Children Act 1989. The welfare checklist considers the following:
- The ascertainable wishes and feelings of the child in question
- The child’s physical, emotional, and educational needs
- The likely effect on the child if circumstances change 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 or any other person the court believes to be relevant, is of meeting the child’s needs
- The powers available to the court in the proceedings
The court will also consider the following factors before making a recommendation:
- The reasons one parent is seeking to change the child’s school
- The reasons the other parent is disputing the proposed change of school
- The date of the required enrolment and start date of the proposed new school
- Evidence of any steps taken by either parent to resolve the dispute in advance of court proceedings being issued
- Evidence of the parent’s research in relation to the proposed new school
- Evidence from the child’s existing school such as school reports and/or relevant letters
- The resources available to the child at the proposed new school
It is important to understand that a court decision may not necessarily be in your favour, or what you want. The court’s paramount consideration is what is in the child’s best interests, and not the parent’s.
What can I do if my ex has changed our child’s school without obtaining my consent?
If they have already enrolled the child in the school, or even moved them completely, without obtaining your consent, it is not too late to take action. You should always try to avoid court proceedings where possible, so discussing the issues with your ex or attending mediation may resolve the dispute early on. If this does not prove fruitful, then, depending on the stage of the move, you may need to apply for a specific issue or prohibited steps order.
When should I speak to a solicitor?
If you are unable to reach an agreement with your ex, you should seek advice as soon as possible. You may need to make an application to court for a specific issue or prohibited steps order to block the move, and time may be of the essence. As a concerned parent, it is essential that your concerns are listened to and you are given the best advice, that takes into account your individual circumstances, and the needs of your child.
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