The rules surrounding the exercise of parental responsibility of children at school can often seem complex and confusing.
As a parent your child’s education is one of the most important decisions you can make, but due to the importance of this decision it often becomes a source of contention between parents; especially for parents who have separated. This can often lead to a number of questions such as, can the other parent enroll my child at a school I do not want them to attend? This will depend on the status of parental responsibility and which local authority is responsible for your child in respect of state schooling.
Who has Parental Responsibility?
There are certain instances whereby a person automatically is deemed as having parental responsibility. A mother automatically has parental responsibility for her child from birth irrespective of whether they are married to the father. If the father is married to the mother at the time of the child’s birth, the husband automatically has parental responsibility for the child. However, an unmarried father does not automatically have parental responsibility from the child’s birth, but will do so if the mother’s names him as the father on the child’s birth certificate. An unmarried father can also obtain parent responsibility through a court order, namely through a Parental Responsibility Order. Parental responsibility is also conferred if the court has granted a Child Arrangements Order ‘Lives With’ Order in favour of the father (previously called a Residence Order)
Although a single parent can enroll a child to a school without the other’s permission, the Court is committed to ensuring that no parent is favoured over the other and as such the Court usually takes the view that everyone with Parental Responsibility should agree. This is obviously easier said than done, but what happens when you cannot agree?
Mediation is often the most cost-effective and flexible way to try and agree on an issue of contention. Mediation is a process whereby a neutral third-party, the mediator, listens to both sides of an argument and attempts to help the parties come to an acceptable middle ground. This process is completely confidential but is not legally binding. Both the Court and the government are great believers in the use of mediation, with the government even introducing a time-limited scheme to support those who may be able to settle a family dispute outside of court. This scheme provides for people to receive potentially up to £500 towards the cost of mediation if eligible. Recent case law in private children cases highlights the need for Judges to explore whether a case in court can be referred to mediation as a means of resolving matters.
However, mediation is not always an option for everyone, for example if you have been a victim of domestic abuse by the other parent or if the matter is extremely urgent. If this is the case then you may have to apply to court without attending mediation.
- Applying to court
If an agreement cannot be reached though mediation, you may have to issue court proceedings for a ‘Specific Issue Order’ or a ‘Prohibited Steps Order’.
A Specific Issue Order is an order that can be made by the Court to determine how best to resolve a specific dispute relating to a child such as for example, which school a child should attend. Anyone with parental responsibility can apply for a Specific Issue Order, however in order to issue an application, in many cases you will require a ‘MIAM’ certificate to state that you tried mediation, but it was unsuccessful. You may be able to bypass mediation in situations of urgency or if you were a victim of domestic abuse. Where there is no domestic abuse then issues over which school a child should attend can be emotionally draining and binary i.e. such issues are often not resolved by mediation.
A Prohibited Steps Order is an order that you can apply for to prevent the other parent from exercising their parental responsibility unilaterally. This may be necessary in stances where the child has been taken out their previous school or there has been a threat to do so.
What will the court consider?
When considering any application involving a child the Court’s paramount concern will be what is in the child’s best interests. This is achieved by the court following a ‘checklist’ found in section 1(3) of the Children Act 1989 and considers the:-
(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
(b) his physical, emotional and educational needs;
(c) the likely effect on him of any change in his circumstances;
(d) his age, sex, background and any characteristics of his which the court considers relevant;
(e) any harm which he has suffered or is at risk of suffering;
(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
The court looks at each case on an individual basis and if considering which school a child should attend they will also consider other factors, such as logistics of school collections and drop offs (how far would a child have to travel to school in the car/public transport, are there any siblings at the school already). If considering two schools will consider which can offer a better opportunity for the child in question. For example, if your child has special educational needs the court will consider what SENCO provisions each school has in place and which school will best support the child. Often there will be a comparative analysis undertaken in respect of Ofsted reports (although these can be sometimes misleading, especially if an Ofsted report was last undertaken almost ten years ago).
The court will consider the parents views and the child’s interests in order to strike what they deem to be the most appropriate decision.
If you require advice relating to issues such as these, please feel free to contact our specialist Children and Domestic Abuse Team on 01788 579579 or 01295 270999