Mishcon de Reya page structure
Site header
Main menu
Main content section
School books on bench

Choosing a school for your child: what to do if there is a dispute

Posted on 16 September 2022

Although the new school year has only just begun, parents with children who need to start or change school in September 2023 will already be looking ahead and beginning the application process.

Independent schools operate their own timetables and school places may be offered and accepted years before a child is due to start at the relevant school. As regards state schools, County Council deadlines vary (and should always be checked well in advance); but the window for applications for state primary school places tends to run from October to January, and for state secondary school places, from September to October. In all cases, it's worth researching, and if possible, visiting, all prospective schools for your child as early as possible. Talking to other parents and reviewing private school guides or Ofsted reports can assist. If you child has SEN and this will inform your choice of school, the fact that it can take months to obtain an educational psychology report evaluating your child's particular needs should also be factored in.

Early research may be even more important if there is scope for dispute between parents as to which school their child should attend.

If you have "Parental Responsibility" (PR) for your child, you have a say in which school they should go to (amongst other things). Most parents in England and Wales have PR for their children. Biological mothers automatically have PR for a child. Fathers have PR if they were married to the mother at the time their child was born, or if they were unmarried but jointly registered the birth with the mother. PR can also be obtained by entering into a Parental Responsibility Agreement with the mother, or by obtaining a Parental Responsibility Order from the court. Same-sex partners will both have PR if they were civil partners at the time of the relevant treatment (e.g. donor insemination or fertility treatment). For same-sex partners who are not civil partners, the second parent can obtain PR by either applying for PR if a parental agreement was made, or becoming a civil partner of the other parent and making a Parental Responsibility Agreement or jointly registering the birth.

The exercise of Parental Responsibility can sometimes cause conflict between those who share it. What happens if – for ideological, financial, faith or other reasons – you cannot agree with your former partner on where your child should go to school?

If you and the other parent cannot reach agreement between yourselves, seek specialist legal advice, as matters may be resolved more rapidly if a family lawyer negotiates with the other parent. Alternatively, you and the other parent could attend mediation together. Mediation takes place in a neutral setting and allows you to discuss and probe each other's wishes. Depending on the age of your child, the mediator may involve them in the discussions to ascertain their own wishes and feelings.

Ultimately, if parents cannot reach agreement on schooling between themselves or via some form of alternative dispute resolution, a court application may be required. Most often this will be an application for a Specific Issue Order to determine which school your child should attend.  In limited circumstances it will be appropriate to apply for a Prohibited Steps Order. This is a court order to stop someone from exercising their Parental Responsibility for a child, for instance to stop them from moving the child from one school to another without the other parent's consent.

When considering such applications, the court’s paramount concern is the welfare of the child in question, and any order made will be in what the court considers to be the child’s best interests. Some of the factors the court will consider are the wishes and feelings of the child (dependent upon their age and understanding), their physical, emotional and educational needs, the likely effect of any change of school upon them, their age, sex and background – and any harm that the child may be exposed to.

It follows that, if you disagree with the other parent about where your child should go to school, you need to consider these factors too. What does your child think about your proposed school (if they are old enough to give a view)? How will your chosen school meet your child's specific needs? How might it benefit your child, compared with other possible schools? How do its academic and pastoral credentials compare? Does it provide access to learning support (if relevant)? If you think your child should move schools, what will be the impact on them of leaving behind known teachers and peers (positive and negative)? Can you mitigate any negative impacts? And then there are practicalities to consider: how will your child get to and from your proposed school? If there are agreed child arrangements in place, will a change of schools necessitate any change to these arrangements?

The position may be more complicated if one parent wants their child to attend an independent school and the other does not.  Aside from differing views on private and state education, there is the question of how school fees can be met.  If parents are in the process of divorcing, payment of any (current or future) school fees and associated costs such as school uniform and school kit should be negotiated within the context of financial negotiations on divorce.  If the issue arises after divorce or if the parents were never married, then it may be necessary for one parent to make a separate, parallel application to the court under Schedule 1 of the Children Act 1989, so that the court can assess each parent's means to pay prospective fees.  Albeit a court won't order a parent to pay school fees that are unaffordable for that parent, the court's views on affordability may differ from the parent's views.  If you are dealing with this scenario, it is worth getting an early steer from a specialist family solicitor, to weigh up the risks and best present your case.

If you are considering a state primary or secondary school for your child, your home address (and whether you live in the catchment area of your desired school) may prove definitive in the event of a parental dispute.  If your child lives at more than one address, their main residence for catchment purposes may be deemed to be where they spend the majority of their school nights (Sunday to Thursday).  If they divide their time equally between two addresses, further evidence may be required to identify the child's main home.  Check your relevant County Council's guidelines for the circumstances that will apply in your child's specific case.  In some instances, other factors will take precedence over whether or not you and your child are in catchment.

If you think you may need assistance because you have a potential disagreement with your former partner about your child’s schooling or education, contact our specialist team.

How can we help you?

How can we help you?

Subscribe: I'd like to keep in touch

If your enquiry is urgent please call +44 20 3321 7000

Crisis Hotline

I'm a client

I'm looking for advice

Something else