Family Solicitors

Separated couples frequently disagree over a child’s future school, so it is vital to understand the rights of both parents when this issue arises following a split.

The school a child attends is a huge decision and ordinarily each person with parental responsibility is entitled to a say in it. ‘Parental responsibility’ is when a parent or other adult, such as a guardian, has the right to be involved in major decisions regarding a child’s life. This is not removed automatically when parents separate. A child’s mother has parental responsibility automatically upon the birth of the child, and can usually be acquired by the father if he is named on the birth certificate or is married to the mother of the child, if the child was born after 1 December 2003.

It is important to note that, in the event that only one person has parental responsibility for a child, that parent or guardian does not need to seek consent from any other individual prior to changing the child’s school, subject to other restrictions.

It is recommended that parents attend mediation where possible and try to reach an agreement with the input of a mediator. This is a requirement before any application can be made to the court.

Court proceedings can be costly and time-consuming and it is best to try and reach an agreement outside of the court arena. Parents may also wish to consider arbitration, which involves an independently appointed professional who can assist parents in forming a binding agreement on what school the child should attend.

If parents struggle to come to a suitable decision or simply cannot agree which school is best then it may be necessary to make an application to the court, so that the court may form a decision based on the information put forward.

If mediation or arbitration does not work, the next step would be to apply to the court under a Specific Issue Order, under Section 8 of the Children Act 1989. This will deal with the ‘specific issue’ of where the children should attend school in the event that the parents cannot agree.

It is important to note that the court will require confirmation that mediation has been attempted, or that the applicant parent or guardian has attended a Mediation Information and Assessment Meeting (‘MIAM’).

A Specific Issue Order can be made by any person with parental responsibility over that child, and should be made to the court that is closet to the child’s main residence. Once the application has been received by that court, the court will review the same and list a hearing whereby both parents would need to attend. The court will then hear from both parents as to what their positions are in respect of the school the child shall attend.

On some occasions, the court may instruct the Children and Family Court Advisory and Support Service (CAFCASS) to write a report on the child. This will conclude with recommendations from a professional as to what school the child should attend based on their investigations. In order to prepare their report, CAFCASS may interview the child and/or the parents of the child.

When forming their recommendations for the court to consider, CAFCASS applies the ‘welfare checklist’ which is under section 1(3) of the Children Act 1989.

This will consider:

1. The wishes of the relevant child


2. The needs of the relevant child


3. How the change in circumstances is likely to impact the child


4. Characteristics of the child including their age, sex and background


5. Whether the child is at risk of harm or is suffering from harm


6. Whether the parents are capable of satisfying the needs of the child


7. What power the court has to make particular decisions in the circumstances

If you have been affected by any of the issues raised by this article, please contact our expert family and childcare team for advice. Your call will be treated sensitively and in the strictest confidence.

Our family department is ranked and recommended in the prestigious Legal 500 guide for the quality of solicitors as well as its diversity of experience across the firm.

About the author: Amanda Willmore is a Chartered Legal Executive and supervisor based is has wide ranging experience in family law and all matters relating to divorce and separation, particularly in respect of clients with a high net worth.

For advice on any divorce or separation matter contact her via email at AmandaJ@duncanlewis.com or via telephone on 020 7014 7305.