No sooner have you managed the transition to primary school than you are yet again berating yourself for not making a strategic house move or having a faith. The issue of senior school entry is a particular issue for London parents where school options within a small catchment area can be so varied.

The other complication in the debate is that your 10 year old will expect to be consulted and will indeed then express a preference, usually different to your own. Their criteria for selection will be varied and, shall we say, often eclectic.

The situation with separated or divorced parents is even more complex and, when you put into the mix the difficulty of even getting a school place, then it is no wonder that many parents find themselves in a lawyer's office discussing
options.

What to do when there is just no way through the debate between warring parents?

The remedy lies with the Court, which gives an opportunity to have both parties' views heard and for the children's wishes and feelings to be articulated.
It is usual nowadays for parents to share the legal rights and responsibilities for their children. This is embodied in the concept of parental responsibility. The Children Act 1989 defines this 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".

There are two relevant orders which can be utilised to curtail the exercise of parental responsibility: (a) the "prohibited steps order"; or, to enforce the same (b) the "specific issue order". Depending on which side of the fence you are standing on, a parent could, for example, apply to prevent the other parent sending a child to a particular school, or could seek to endorse their own school choice.

How does the Court decide such complex and life changing matters?

The Court's paramount consideration is the welfare of the child, and this will be at the forefront of any judge's mind in determining any issue which affects the upbringing of a child. The Court determines the child's welfare by having regard to the "welfare checklist" set out in the Children Act, which places emphasis on the following:

  • the ascertainable wishes and feelings of the child concerned in the light of their age and understanding;
  • their physical emotional and educational needs;
  • the likely effect of change;
  • his or her age, sex or background and any other characteristics which the Court considers relevant;
  • any harm the child has suffered or is at risk of suffering;
  • the capability of the parents and the range of powers available to the Court.

The Children and Families Act 2014 has, as of 22 October 2014, added another element to the checklist which is a presumption of continued parental involvement.

After an application is made to the Court, there will usually be a first hearing to determine issues and to make directions. The parties are likely to be invited to provide witness statements setting out their position with supporting evidence which may take the form of evidence from the children's current schools. CAFCASS may be asked to investigate the issue and it is usually through them that the children's wishes and feelings are conveyed to the judge. After all evidence is received, a final hearing will be listed and the decision determined with evidence heard from the two parties.

It is clear from previous cases that the Court does not like to usurp parental judgment, and it prefers parents to reach resolution, particularly through mediation. However, on occasions this is just not possible.

Cultural issues

The choice of school often raises fundamental parenting differences: whether the children should attend a faith school, boarding school or single sex school. Cross-cultural issues are also now becoming a point of contention. A case in 2013 highlighted this, where one parent wished the children to attend a very orthodox Jewish religious school, and the other preferred a more liberal Jewish education. The judge in that case, Mr Justice Munby, tried to condense what he saw as three significant values of society to be considered when any Court makes a decision around parental responsibility, and in this case education. He said that children should be:

  1. provided with equality of opportunity;
  2. encouraged to have aspiration; and
  3. equipped to make life decisions.

These are interesting remarks which should be borne in mind when we come to making our own decisions around schools. How many of us would see these as our guiding principles? Food for thought as we enter the entrance exam season.