Divorced Parents: Resolving School Choice Disputes

Lisa Pepper

What Happens When Divorced Parents Can’t Agree on School Choice?

The decision of where to send your children to school must be made early. The application deadline is 31 October in the year before the child is due to start for secondary school places. It’s a little later for primary school places, 15 January. Grammar and independent schools have different deadlines but they generally will be in the autumn term. Applications received after these dates are typically considered late and may be processed after on-time applications, potentially reducing your chances of getting your preferred school.

In most cases, parents agree on the school choices for their children. The practicalities of how the child will get to school, its academic record and pastoral factors usually nudge the parents towards a consensus.

Sometimes though, unmarried or divorced parents will hit a deadlock over school choice. In these situations, the court can step in and make a decision that is in the best interests of your child.

That said, court proceedings can take far longer than the application deadlines for schools. Non-court dispute resolution (NCDR) is usually far more effective in helping you to reach a cooperative decision quickly without the stress, cost and conflict of going to court.

Which parent decides what school the child attends?

Where both parents have parental responsibility, they are both responsible for choosing their child’s education.

A child’s birth mother automatically has parental responsibility. A child’s father will have parental responsibility if he was married to the child’s mother when the child was born, is named on the child’s birth certificate (since December 2003), or has obtained a Parental Responsibility Order. A divorce or separation does not affect this.

Parental responsibility is not limited to biological parents and can be acquired by various individuals such as step-parents, same-sex partners and legal guardians. Everyone with parental responsibility has an equal say in important decisions concerning the child, including school choice. The courts expect parents to consult with each other and make joint decisions, and the onus is on you to try to come to an agreement before involving the court.

How can parents reach a decision?

Having an open conversation with your ex-partner is the best first step. If that is difficult for you, then work with a solicitor who practices NCDR, because you will want someone who is a good negotiator. They can help you find common ground, such as a shared desire for a private or religious education, and reach a compromise, avoiding court. The child’s views should also be taken into account, especially for those over the age of 11. The child’s teachers may also be able to provide valuable insight into the child’s needs.

If you can’t come to an agreement, family mediation is a good next step. In this approach, a trained and neutral mediator will facilitate discussions between you and your ex-partner and help you find solutions that work for both of you. If your child is aged 10+, a Child Inclusive Mediator (CIM) can invite your child to meet them and talk about their wishes.

A “meatier” NCDR technique is family arbitration. Here, a trained professional (often a retired Judge) hears all the evidence and makes an independent decision on behalf of you both. This option can be much quicker and cheaper than going to court.

There are some procedural steps involved with arbitration. The arbitrator has the power to request that you instruct experts, including independent social workers, to assess the child’s wishes and feelings and to advise on welfare issues. This is similar to how a court might use a CAFCASS report in traditional court proceedings. An experienced family law solicitor can advise if this is a good option for you and help make your case. A Judge or Arbitrator will want an expert to have met with the parents and the children, to help the Judge/Arbitrator decide what is in the best interests of the children.

What happens if we go to court?

If NCDR fails, you have the option of going to court. Disputes over school choice are dealt with through a Specific Issue Order application, which is used when parents cannot agree on a specific issue related to their child.

Another option is a Prohibited Steps Order. This is used when one parent becomes concerned about the unilateral behaviour of the other parent, for example, where they apply for a school place behind their back. A Prohibited Steps Order would prevent that action being taken, and then allow the court the opportunity to step in and make a school-place decision if the matter remains unresolved.

The court will make a decision based on the best interests of the child. This will involve weighing up all the evidence and considering factors such as:

• Why you wish to remove the child from their current school, if this is not a natural age transition.
• Whether the child has special needs or talents that only your preferred school can cater for.
• The educational, pastoral and extra-curricular offer of each school.
• How the child will be cared for after school and by whom.
• For private schools, how the fees will be paid.

In any event, the court will require you to attend a Mediation Information and Assessment Meeting (‘MIAM’) before making the court application. You cannot by-pass this requirement unless you are exempt. NCDR remains a key step in trying to resolve any dispute without the need for court intervention.

Cautions and considerations

When disputes over child arrangements cannot be resolved through negotiation or mediation, taking the matter to court can feel like the only remaining option. It’s important to approach this step with caution, however, as going to court is risky in three key ways:

• You may not get what you want.

Court proceedings do not guarantee that either parent will get their preferred school choice. The ultimate decision will always be based on what is in the best interest of the child. The court will be guided specifically by the welfare checklist laid out in s1(3) of the Children Act 1989, which instructs the court to pay particular attention to the child’s wishes and feelings, their physical, emotional and educational needs, and any harm they may be at risk of experiencing. The child’s needs and wishes come first, not yours.

• The court may make further orders concerning the child.

It’s worth noting that where an application is made for a Specific Issue Order, the Court can make further orders concerning the child. This includes matters like which parent the child should live or when the child should spend time with the other parent. Whilst it is rare for the court to intervene when the parents are in agreement on these issues, it is a risk that should be considered before making an application – there is an element of unpredictability once proceedings start.

• You have to think at least two years ahead.

An application for a Specific Issue Order may take up to a year to resolve. There is a real risk that you will miss the application window for your preferred school while the court process takes its course.

How we can help

The bottom line is don’t delay! If you are concerned about your child’s schooling, it is important to take legal advice on your options as soon as possible to ensure there is sufficient time to resolve the issue. NCDR should always be explored first. Working with a family law solicitor experienced in NCDR techniques can make all the difference in achieving a positive outcome for your child’s education and getting that all-important application in on time.

If you need expert legal advice, you can contact our experienced solicitors by:

• Filling in our online enquiry form; or
• Calling us on 020 7485 8811