There are many factors to consider when selecting a school for your children: location, Ofsted ratings, reputation, extracurricular opportunities, sports facilities – the list goes on. For separated parents, there can be further things to think about. How will the school work in terms of childcare agreements? Can both parents get to the school easily in case of an emergency? In the case of private schools, will there be a financial impact of choosing one school over another?
If separated or divorced parents are unable to agree on just one of these considerations, things can start to get complicated. If you cannot come to a consensus on which school is right for your child or children, what happens next?
First step: Talk
As with all disagreements, especially those involving the care of a child, the best place to start is with an open and honest conversation. Arrange to speak to your ex-partner and/or anyone else that has a parental responsibility for your child or children. Discuss your thoughts, express your concerns, perhaps arrange to visit the schools for yourselves. You might be able to find some common ground, in which case one school may emerge as the preferred choice for both parties. If you’ve tried talking, but are still unable to come to an agreement, what then?
Second step: Mediation
The next step would be to arrange to see a trained family mediator. A third-party specialist would listen to both sides of the argument, and may ask to speak to your child or children (depending on their age), in order to assist you in finding an amicable solution.
“If successful, mediation provides parents with a relatively swift resolution which has been agreed by them rather than imposed on them by the court,” says Trevona Hettiarachchi, Senior Associate in the Divorce and Family team at Stewarts Law. “Mediation is quicker and significantly less expensive than litigation. It also spares the parents, the wider family and, most importantly, the child, from the stress and conflict of court proceedings.”
With schooling decisions, however, timing tends to be of the essence. Take, for example, entries that rely on 11+ examination results. Typically, there’s a small window between offers being made by the school and the time for acceptance. “Unless both parties are entering mediation in good faith with genuine motivations to resolve the matter,” says Trevona, “mediation can be used to time out the other parent from seeking a determination by the court.” Even with the best will in the world, mediation can still be unsuccessful. So, what happens then?
Third step: Court
If, after mediation, you’ll still unable to arrive at a consensus, then the matter can be taken to court by applying for a Specific Issue Order or a Prohibited Steps Order. A court will only grant these orders if parents have attempted mediation first.
“The benefit of taking the matter to court,” says Rosie Stewart, also a Senior Associate in Stewarts’ Divorce and Family team, “is that you end up with a binding decision which will provide both parents, and the child, with a definitive resolution to the conflict. The downside is that court proceedings could get costly. If the matter proceeds all the way to a final hearing there will likely already have been three separate court hearings at a significant cost to both parties. It may also take several months for the court to list a final hearing, which leaves the family in a state of prolonged uncertainty.”
What will the court consider?
“The court’s paramount consideration is the welfare of the child,” says Rosie. “The court must consider what is known as the ‘welfare checklist’ set out in the Children Act 1989. This includes the ascertainable wishes and feelings of the child; the child’s physical, emotional and educational needs; the likely effect on the child of any change in their circumstances; any harm the child has suffered or is at risk of suffering; and how capable each of the parents is of meeting the child’s needs.”
“This year,” says Rosie, “I had a case where the educational experience of the child’s older siblings was a factor the court took into consideration. The older siblings had been educated at School A. One parent wanted the younger child to go to School A. The other parent did not. The court agreed that the younger child should follow their siblings to School A as to not do so would set the younger child apart from the older siblings in a way that could be harmful to the younger child. I had not come across that line of argument before and thought it interesting.”
Says Trevona: “My most recent experience of a schooling application involved a high-achieving child who was sitting their 11+ examinations and while the parents were able to shortlist the secondary schools of choice, they were unable to agree an order of preference pending offers. In the end, having prepared statements and with a matter of weeks to go until the hearing, the child did not receive an offer for the father’s preferred school, so consented to the mother’s choice. It was technically a ‘win’, but bittersweet as the child was completely aware of the conflict involved.”
To discover how Stewarts can help assist you with schooling disputes, or any other family matters, please call 020 7822 8000 or visit stewartslaw.com