Do I have a say on which school my child attends?
11th March 2020
The answer to this is based upon whether you have Parental Responsibility or not.
Parental Responsibility is defined by the Children Act 1989 as being “all the duties, rights and responsibilities each parent has to a child”. In practice this entails that each person who has parental responsibility holds it in equal measure with the other parties who hold parental responsibility. Additionally each person with parental responsibility is entitled to make decisions about their child or children’s upbringing to include education, what school they attend, what medical treatment they receive, what religion they follow for example. It entitles both parents, if they have parental responsibility, to be kept informed of the child’s progress by the other parent and participate in any decision making as to the child’s life.
At present mothers automatically have parental responsibility for their children. Fathers have parental responsibility for their children in the following circumstances:
- If they were married to the mother at the time the child or children were born or subsequently married the mother then they acquire parental responsibility.
- Or if they are named on the birth certificate of the child concerned whether married or not since December 2003.
- By agreement entered into and signed by both parents usually before magistrates
- By order of the court
If parents cannot agree on aspects of the children’s upbringing despite negotiations by solicitors or between the two of them, or with the assistance of mediation, then an application to the Court maybe required, what is known as a Section 8 Order (Section 8 of the Children Act 1989).
A Section 8 Order encompasses making decisions about where a child resides, how much time they spend with each parent, what school they go to, whether they leave the jurisdiction, whether they go on holiday, what medical treatment they receive etc and essentially includes all of the aspects of a child’s life.
Such an application is best made sooner rather than later due to the inherent delays in the court processing such an application. When this is an item of dispute then OFSTED reports are a piece of evidence the Court consider for example. However, when considering whether to make an order at all the Court have to consider whether the making of an order itself is in the child’s best interest rather than no order and also have to consider the child’s needs as its paramount consideration and also what is known as the “welfare checklist”. This is defined as follows:
- The 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, background and any other characteristics that will be relevant to the court’s decision
- Any harm the child has suffered or may be at risk of suffering
- The capability of the child’s parents (or other relevant people) in meeting the child’s needs and
- The powers available to the court
The Court must also bear in mind the ‘no-delay principle’ as it is obviously felt that delay is actually prejudicial to the child’s welfare. Very often if the child’s wishes and feelings need to be explored in some depth or there are what are known as welfare concerns (risk factors) then the Court may well appoint CAFCASS to provide an independent assessment. They will provide a report to the court and parties having spoken with both of the parents and potentially the children to establish what their recommendation to the Court would be taking into account primarily the best interests of the children having regard in particular to the welfare checklist. Each parent will have a copy of that report to consider. It is usually extremely persuasive to the Court in the Court making a decision.
About the author
Samantha Chater is a Family Solicitor and has a wealth of family law experience. Samantha is also an accredited member of both Resolution and The Law Society Children Panel and has represented parents and children in complex Children Act Disputes.