Few situations are as sad as parents fighting between themselves over a child’s education, yet such disputes are all too common and as an independent school you can easily get caught up in a melee. The steps below will navigate you through such situations.
Understand the concept of parental responsibility
Parental Responsibility (PR) is a technical term. It is defined in section 3(1) Children Act 1989 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’. PR is important because it entitles an individual to make key decisions about a child’s upbringing. The rules as to who has PR for a child are not uncomplicated and, crucially, those with PR will not always be the child’s birth parents, on which see below.
Is the issue a major one?
Consider how significant a matter is.
Day-to-day decisions can usually be taken by the person with whom the child lives. For example, you will usually only need consent from one parent to take the child on a trip. It is only where there is a major decision to be made – or where parents express conflicting wishes about an issue – that matters become complicated.
Who has PR?
Where there is a major decision to be taken – for example, a request for a child to be registered under a new name, to follow a new religion or to undergo medical treatment – the agreement of everyone with PR will be required. Therefore, where there is a dispute, the first step is to ascertain who has PR. Where only one individual has PR, you should normally give effect to that person’s wishes, unless there is a court order to the contrary, on which see further below. If you are in doubt as to whether an individual has PR, seek legal advice. The basic rules are as follows:
● Birth-mothers automatically have PR and do not lose it if divorced.
● Married birth-fathers automatically have PR and will not lose it if divorced.
● Unmarried birth-fathers do not automatically have PR but can obtain it in various ways including by marrying the mother; having their name registered on the child’s birth certificate; entering into a Parental Responsibility Agreement with the mother; obtaining a Parental Responsibility Order from the courts; being named as the resident parent under a Child Arrangements Order; or becoming the child’s guardian on the mother’s death.
● Step-fathers, step-mothers and grandparents do not automatically have PR.
Is there a court order?
Where more than one person has PR, or if there seems more to the matter, ask the parents whether there is a court order in place. It may be that the courts have already been asked to adjudicate. If one person insists there is an order, ask to see it and consider it carefully. Ask how many orders there have been, taking steps to ensure you are consulting the most recent.
If the parents cannot agree (and where there is no court order) they will need to resolve matters themselves: you cannot do it for them. A formal mediation process may help but failing this, the courts will need to step in under section 8 of the Children Act 1989. The court’s decision will be based on what it considers to be in the best interests of the child. Pending an outcome, try to preserve the status quo and avoid taking any positive steps that would normally require the agreement of both parents.
Remember that even if a person does not have PR, he or she may still have certain rights under education law.
For example, the Education Act 1996 gives all biological parents the right to certain information. Also, as an independent school, do not fall into the trap of giving precedence to the parent who pays the fees – one parent cannot displace the parental rights of another simply by entering into a contract with an independent school.
When registering a child at your school, ask for the names of both biological parents, a list of those individuals with PR, a copy of the birth certificate and copies of any court orders. Stress the importance of full and accurate information. This will help you to anticipate any difficulties.
Contact Sinclairslaw and whatever your need, our expert team of solicitors can help with straightforward advice that you can trust.
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