28 March 2017

Pupil admissions – who has parental responsibility?

I frequently advise schools and parents on the correct procedure for a child to attend a school when the parents cannot agree.

If one separated parent wants a child to attend a particular school but the other parent does not agree, does that first parent have a right to enrol that child in that particular school?

Under Section 2(7) Children Act 1989 the law states that “where more than one person has parental responsibility for a child, each of them act alone and without the other or others in meeting that responsibility but nothing in this part shall be taken into effect the operation of any enactment which requires the intent of one or more person in a matter affecting a child”.

So theoretically yes, but what is best parameter?

The first question the school should ask itself is who has parental responsibility?

All birth mothers will automatically have parental responsibility unless this has been stripped away from them by their child being adopted by new parents. Fathers nowadays nearly always have parental responsibility and will have them if they are married to the mother at the time the child was born, the father is not married to the mother but the child is born and registered on or after the 1st December 2003 and the father is named on the birth certificate.  An unmarried father can also have parental responsibility if the mother has entered into a Parental Responsibility Agreement with him even if the father is not on the birth certificate. Unmarried fathers can also have parental responsibility if they have been given a Parental Responsibility Order by the Court or have been awarded a Residence Order (now called Child Arrangements Order after the 22nd April 2014) specifying the child lives with him.

It is possible that non-parents hold parental responsibility. Step-parents can hold parental responsibility if the parents both agree to grant the step-parents a Step-Parent Responsibility Agreement or the Court awards to the step-parent a Step-Parent Responsibility Order. Occasionally step-parents also have the benefit of Residence Orders (or Child Arrangements Orders from the 22nd April 2014)

Other people, such as grandparents may also hold parental responsibility if they are subject to Special Guardianship Orders. A Special Guardianship Order allows a grandparent or person in whose favour the Special Guardianship Order is made, to decide which school the child should go to to the exclusion of anybody else with Parental Responsibility, however, with all other forms of Parental Responsibility the school should make sure that all parents are in agreement.

Although it is possible under Section 2(7) of Children’s Act 1989 for one parent to sign a child up to a school and therefore that child to become a pupil at the school, best practice from case law (higher courts telling the lower courts the correct procedure) is that everyone with Parental Responsibility should agree unless a Special Guardianship Order is in force. If agreement is not reached, then best practice is for a school to decline to allow a child to attend until the Court has made a decision and this can be under two types of orders either a Prohibited Steps Order forbidding a child from moving schools or a Specific Issue Order which is a positive Order which states that a child shall attend a particular school. Generally, it is incumbent on the parent wishing to change the child’s school or wishing to have the child admitted to the new school to make the application for a Specific Issue Order. However, if the parent who objects finds out about the first parent’s plans, then they may wish to apply to the Court for a Prohibited Steps Order forbidding the child to be removed from a previous school.

Even if a school does not find out who has Parental Responsibility, it is not illegal for a child to be enrolled in a school without the other parent with Parental Responsibility’s consent however, it is not considered best practice and the school may suffer criticism from the Courts for allowing a child to attend if the school has made absolutely no effort to find out who has Parental Responsibility. The school should, of course, attempt to find out who has Parental Responsibility as they are under a duty to provide all those with Parental Responsibility with regular academic updates on their child’s progress at school.

Remember if there are children who only have one parent with Parental Responsibility then the unmarried father does not have to give consent as he does not hold Parental Responsibility and it is Parental Responsibility only that gives a person all those rights, duties and obligations as regards the upbringing of their child as those without, even parents, have no legal rights, duties or obligations as regards the upbringing of their child other than to pay child maintenance.

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About the Author
Mathew Waddington, Partner
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