David Thompson, a partner in the family team at law firm Seddons, discusses the issue of a school’s choices when pupils have divorced or separated parents

For parents who decide that a private education is the best route for their child, choosing which school is the best fit for them is a difficult enough decision without the added stress and worry of the costs, fees, and whether their child will make the cut. The introduction of VAT on school fees by the new Labour government will not make this process any easier, and will only further add to the significant pressure felt by parents.

Imagine, then, how much harder this process becomes if you’re going through, or have recently gone through, a divorce, which is such a difficult and stressful time in any event. Suddenly, other factors and questions come into play: are private school fees going to be affordable? Is this an appropriate expenditure given the further calls on the family finances when setting up two households? Do I want to send my children to a fee-paying school if there’s a significant risk that I’ll have to move them to the state system in the near future?

This is also going to be a very difficult time for the child, who will need to adapt to the new realities at home at the same time as starting a new school. An already worrying and nerve-racking time for any child just became that much more overwhelming.

On the other side, is the school itself: its leadership and decision-makers need to be prepared for how to deal with current or potential new pupils coming from divorced households. The initial interface between parents and teachers is usually at an open event where the parents will attend to gather information about the various schools they are considering for their child. Broadly speaking, parents must be in agreement about which school their child is to attend. The school must only take a pupil if it’s clear that both parents have consented to this.

In some, although thankfully not many, instances, one of the parents will have sought, and been granted, an order whereby they have sole parental responsibility, or at least an order stating that they alone are to choose the right school for the benefit of their child. In these sensitive situations, schools are within their rights to ask for a copy of the order, redacted if necessary to remove any other issues contained within the document, to satisfy themselves that only the one parent is able to make this decision. Such orders are made when parents are unable, even after mediation or other informal discussions, to make a decision between themselves about the right school for their child.

Additionally, such an order may be made when one parent is acting particularly and persistently unreasonably, or is displaying threatening or abusive behaviour. Court orders provide the clarity needed, both for the parent who wishes to make the final decision about schooling for the child, and for the schools themselves so they can be provided with evidence that one parent can make the decision.

Unfortunately, where the (divorced, separating or otherwise) parents are not in agreement about the choice of schooling, and until there is such an order in place and clarity has been provided in this way, the schools cannot enrol a child upon the basis of just one of the parent’s say-so. The school would have to satisfy itself that it is able to take the child being enrolled by one parent. Unless it has clear and written confirmation from one parent that they are content for the other to make the choices by themselves then it’s hard to envisage a situation whereby a school would be able to take a child from one consenting parent in the teeth of opposition from the other dissenting parent. Schools should just distance themselves from these situations until the parents themselves have resolved them, either through court or resolution between them.

Schools need also to be mindful, when dealing with separating parents, about into whose care they release the children at the end of the school day. Cases come up on an almost-daily basis between warring spouses about whose task it is to pick up the children and on what particular day. Quite apart from the need for a stable routine, so that the children are able to be sure about which parent is collecting them on which day of the week, schools can get themselves into a tangle if they release the child to the wrong parent on the wrong day because that parent has turned up at the gates unannounced, before the right parent has managed to get there, and the child is sent home with the wrong one. Schools can only do their best here, and so long as each of the parents has parental responsibility (and they almost always will) then the schools are entitled to release the child to either parent.

Should one of the parents seek, and is granted, a court order limiting the access of the other parent to the child specified in the order, then the parent with the order needs to make sure that the school is provided with a copy of the order. The relevant passages concerning any home-time pick-up issues must be shared with the school, which must ensure that it understands the meaning and contents of the order. It is down to the parent with the order to provide the school with any updated orders or changes to the arrangements as and when they arise. It would certainly be good planning to ensure that the school database has details of both parents on its system for parents’ evenings, reports and the like, so it cannot be accused of being ‘in league’ with the parent with the order.

Setting aside those difficult cases, generally it would be prudent for the schools to start from the position that both parents need to provide their written consent to a child attending any particular school: this will be the usual position in the vast majority of cases.

Concerning the source of the funds that will be used to meet the payment of the fees, parents will agree either that the child should attend state or private school, and in the case of the latter, make the appropriate budgetary decisions (if affordable) to ensure that the fees will be met as and when they fall due. The source of the funds may be general savings built up during the marriage, regular commitments being met by the main earner in the relationship, or perhaps it may be grandparents meeting the fees and often this can be through a trust fund set up to benefit grandchildren.

There is no issue at all from the school accepting funds from a trust fund so long as the source of the funds has been made to clear, having made reasonable enquiries itself, and that the parents – who are its clients, after all – have provided written confirmation about where the funds are coming from and that they are happy for these funds to be provided on their behalf.

David Thompson