When parents separate - what schools need to know about parental responsibility
Schools can receive a variety of requests from separating parents seeking to exclude the other from typical responsibilities or duties. We set out the legal position and explain how to deal with those parents who may not be on amicable terms following separation.
The Children Act 1989 defines parental responsibility (PR) as
“all the right, duties, powers and responsibilities and authority which by law a parent of a child has in relation to the child and his property”. In practice this means things like the right to decide where a child goes to school, what, if any religion they practice and whether they should receive certain medical treatment.
Who has parental responsibility?
A biological mother will always have PR for a child unless the child has been adopted.
Where the father was married to the mother at the time of birth he automatically acquires PR. Likewise if the father subsequently marries the mother or is registered on the birth certificate he will have PR for the child. A father can also acquire PR by agreement with the mother or court order.
How can parental responsibility be removed?
A common misconception is that a father will lose PR upon separation/divorce from the mother. This is not true. PR can only be terminated with a court order.
Keep both parents informed about their child’s schooling
It is important when parents separate that your staff do not become tangled up in their differences or take sides. Even if one parent does not want you to, you must keep the other parent informed about their child’s schooling (if that parent wants you to) unless there is a court order in place restricting this information (which might occur, for example, where one parent has subjected the other to domestic abuse or other criminal activities). This means they should receive copies of all relevant letters, school reports, photographs and information about key school events.
Make sure you have up to date contact details for both parents: do not rely on one parent to keep the other informed.
What if you are asked to?
Change the child’s surname
You may be asked to change the child’s name either formally or informally. You should not change the child’s registered surname unless the other parent with parental responsibility agrees to this in writing. If the other parent with parental responsibility will not agree to the change, the parent will need a court order or some other proof that the surname has been legally changed.
Provide information to the court about the child
You may sometimes be asked to provide comment, within children proceedings, on the child’s presentation at school and whether they have made any disclosures to you. Always stay neutral and seek advice from your legal team as to how to respond.
Lawyers often advise parents to encourage children to speak to their teachers as individuals they can trust. If a child does approach you, no matter how small it may seem, always keep an accurate and contemporaneous note and have this logged on the child’s file. These disclosures could be crucial evidence in proceedings.
If a parent asks you for advice on family law matters, do not give it, but point them in the direction of a family solicitor.
What about if there is a dispute about which school a child goes to when they have special education needs (SEN)?
This question was addressed in the case of S-G v Denbighshire County Council and another. The parents disagreed about which mainstream school they wished their child to attend. The First Tier (Special Educational Needs Wales) Tribunal found both schools to be suitable for the child’s needs and determined that the child should go to the mother’s preferred school because the child lived primarily with her. The Upper Tier Tribunal said that was the wrong approach and that in these circumstances the Tribunal does not have to determine which school the child should attend. Instead, the parents should try and reach agreement between themselves and, where this is not possible, make an application to the family courts for a determination.
It is more likely that this type of dispute will impact on parents rather than schools directly but your staff may well be approached for advice. Parents can and should seek their own independent legal advice if they find themselves in this type of situation.
Tribunals only need to determine which type of school is suitable for the child (i.e mainstream or a special school) where there is a dispute between parents.
Although this case was determined by the Special Educational Needs and Disability Tribunal for Wales, it also applies in England.
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