Once parties separate there is sometimes a disagreement as to which school their child should attend, particularly if the separation results in a child’s address changing or if parents have separated some time before a child starts school.
A child’s school should not be changed unilaterally by one parent and consent should be sought from the other parent (if they hold parental responsibility) before any attempt is made to change the child’s school.
School applications are also made well in advance of the start of the academic year and difficulties can arise if parents cannot agree which school to apply for in respect of the child.
It is beneficial for parents to attend mediation to see whether they are able to reach an agreement as to which school is best for the child.
If the parents are unable to agree the school then it may be necessary to make an application to the Court for a Specific Issue Order under Section 8 of the Children Act 1989 to determine which school the child should attend. It is however a requirement that a referral is made to mediation before any Court litigation can be started.
Any parent or Guardian with Parental Responsibility can make an application to the Court in respect of a child. A mother automatically has parental responsibility however a father usually acquires this if he is either married to the child’s mother or he is named on the birth certificate (after 1st December 2003). A Guardian may have acquired Parental Responsibility through a Court Order.
The application should be to the local Family Court nearest where the child lives. Once this application is made the Court will list the matter for an initial Hearing. The Court will guide the parties in terms of next steps and provision for the parties to file evidence which will include a statement setting out each parties case on why the child should attend a particular school.
There are occasions whereby the Court will instruct CAFCASS (The Children and Family Court Advisory and Support Service), to prepare a report for the Court as to which school they believe the child should attend. It may be that the child in question is of an age where it is appropriate for the Court to consider his/her wishes and feelings.
Both the Court and CAFACASS will consider the welfare checklist under s1(3) of the Children Act 1989 when making their recommendation and their decision as to which school the child shall attend. The welfare checklist considers-:
- The ascertainable wishes and feelings of the child concerned
- 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, backgrounds and any other characteristics which will be relevant to the court’s decision
- Any harm the child has suffered or maybe at risk of suffering
- Capability of the child’s parents (or any other person the courts find relevant) at meeting the child’s needs
- The powers available to the court in the given proceedings
Once the Court has considered the above they will make a decision as to the school the child shall attend.
Equally, if you have concerns that attempts are being made to change your child’s school, the Court can make a Prohibited Steps Order preventing the same.
If you have any concerns regarding a dispute in relation to a school application or are concerned an attempt may be made to change your child’s school, please do not hesitate to contact our specialist children law team on 01295 270999 or visit our website.
If you are interested in learning more about the complicated legal and practical issues surround education for children with special educational needs, why not sign up to our new webinar 'A Whistle Stop Tour of The SEN First Tier Tribunal'. Join SEN Barrister Aimee Fox and Brethertons Partners Kim Lehal and Shaun Jardine, who will be discussing some of the problems and pitfalls of pursuing cases before the SEN Tribunal.
Please treat the contents of our blogs as general guidance only. Please do not take any action based on their contents unless you have sought specific legal advice. Brethertons cannot accept responsibility for any errors or inaccuracies, loss or damage in circumstances where there is no formal retainer between us and we have not given you personal and specific advice relating to a matter for which you have given us full background details. You must also bear in mind that the contents of our blogs are based on English Law, and because they contain archival material, that material is likely to go out of date. Therefore, it is important to consider the date that the blog was posted. Please also remember that the law may differ in different Jurisdictions.