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How does divorce affect children’s education

Until it came to deciding what school I wanted to send my daughter to, I naively thought it would be a simple process and I actually looked forward to noseying around my local schools. I thought the answer of whether it was the “right” school for my daughter would just jump out at me and would be a simple yes or no – oh how I could be so wrong!  The reality was that I spent many hours agonising over which school would be the best fit for her.

In some family situations the agonising decision as to which school your child should attend is made even more difficult when you are separated or divorced and you simply cannot agree on what school your child should go to.  So what can you do in this scenario?

First of all it is important to know that all persons holding parental responsibility (for ease I shall refer to such persons as the parents) have to agree on where the child shall be educated and if there is no agreement, it is open to either parent to apply to the Court to make the decision for them.  This is known as an application for a Specific Issue Order.

What does parental responsibility mean?

The Children Act 1989 defines parental responsibility as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”.

Who has parental responsibility?

A mother automatically holds parental responsibility in respect of their child.  If the parents were married at the time of the child’s birth, the father will have parental responsibility.  If the parents were not married at the time of the birth, but the father’s name is on the birth certificate and the child was born after 1 December 2003, then the father will have parental responsibility.

Can a Father get parental responsibility?

If a father’s name is not on the birth certificate, he can acquire parental responsibility by entering into a parental responsibility agreement with the mother or by getting a parental responsibility order from the Court.

What is a Specific Issue Order?

The Court has the power to determine issues in dispute in respect of children, such as names, education, whether they should receive medical treatment etc and this is referred to as a Specific Issue Order.  Not all parents can agree such issues between them, and therefore they need assistance from the Court.

When children are in school or in an educational setting such as a nursery, you need the other parent’s consent (if they have parental responsibility) to remove the child from their school/nursery and enrol them into another.

The key point to take away is that you should not take unilateral steps to enrol your child into a school/nursery without the other parent’s consent.  The likely consequence of you taking such action is that the other parent will apply to the Court for a Prohibited Steps Order to stop you from sending the child to a school/nursery which they do not agree to.  This would result in urgent proceedings and most likely criticism of you for taking such steps without the other parent’s consent.

What to consider when applying for a Specific Issue Order

The key to Specific Issue applications is preparation, so you can demonstrate to the Court that you have genuine reasons for seeking the decision you want the Court to make.  Looking at the issue of education and specifically schools, you may want to consider the following:

  1. You need to have real reasons as to why you want to change schools / why you want your child to attend a specific school.
  2. How is the school ranked by Ofsted?  How does this compare to the child’s current school?
  3. What facilities does the school have and how would such facilities best meet the needs of your child?
  4. The location of the school and the travel time to and from the school?
  5. What after school clubs are on offer / wrap around care and how does this compare to your child’s current school?
  6. Are there spaces available for your child in your school of choice?
  7. If it is a fee paying school, how will the fees be met?

The above list is not exhaustive, but they are key things you should consider when you want to change your child’s school and the other parent does not agree.

When making a decision as to what school the child should attend, the Court looks at what is in the best interests of the child and in particular looks at the welfare checklist which is defined in the Children Act 1989 as follows:

  • the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
  • his physical, emotional and educational needs;
  • the likely effect on him of any change in his circumstances;
  • his age, sex, background and any characteristics of his which the Court considers relevant;
  • any harm which he has suffered or is at risk of suffering;
  • 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 range of powers available to the Court under the Children Act in the proceedings in question.

Rayden Solicitors are family law specialists who can assist in relation to all aspects of family law. If you require legal advice about any of the issues raised in this blog, please do not hesitate to contact us.

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