Back to school, back to court? Navigating disputes over school choice

The smell of new pencil cases is in the air, the school shoes are mysteriously already scuffed, and the lunchbox negotiations have begun. Yes, it’s that time of year again - back to school. But for separated parents, the start of term can bring more than just the usual chaos. It can also reignite disagreements over where a child should go to school.

Disputes over school choice can be emotionally charged and legally complex, but there are ways to resolve them without heading straight to court.

This blog explores how separated parents can navigate disagreements over school choice, with practical tips and clear explanations of the legal options available.

Who decides where a child goes to school?

In England, decisions about a child’s education fall under parental responsibility. 

This means that anyone with parental responsibility has the right to be involved in decisions about the child’s upbringing - including which school they attend. 

Parental responsibility is automatically granted to birth mothers. This is also the case for fathers or second female parents if they are married or in a civil partnership with the birth mother. Unmarried partners do not automatically have parental responsibility but they can acquire it in several ways, including by being named on the child’s birth certificate. It is also possible for non-parents to acquire parental responsibility.

When parents share parental responsibility but disagree on which school to send their child, neither should make a unilateral decision. Instead, they must find a way to resolve the dispute.

Specific issue order

If parents cannot reach an agreement, one option is to apply to the Family Court for a specific issue order under section 8 of the Children Act 1989. This is a court order that decides a particular issue concerning a child’s upbringing - such as which school they should attend.

When making a decision, the court’s paramount consideration is the child’s welfare. Judges will also consider:

• The child’s educational needs
• Proximity to each parent’s home
• The child’s wishes and feelings (depending on age and maturity)
• Continuity of education
• Any special educational needs

The court will not automatically favour one parent’s preference. Instead, it will weigh all the factors to determine what will be in the child’s best interests.

Prohibited steps orders

If one parent is concerned that the other is going to move their child from one school to another without their agreement, it is possible to ask the court to make an order to stop this. This is called a prohibited steps order.  

It’s important to remember that a court will not consider an application for either one of these orders unless the parent applying has attended a mediation and assessment meeting (MIAM) or a valid exemption from attending applies (and the other parent is strongly encouraged and expected to also attend a MIAM). Judges will also encourage parents to consider and engage with non-court dispute resolution like mediation and will take a firm line with those who don’t properly or adequately engage.  

Before applying to the court, make sure you are aware of the pre-action protocol. This outlines the steps the court expects parents to take before issuing proceedings. It highlights that parents are expected to do what is best for their child, even if might find that difficult and that unless it is unsafe to do so, the child needs to have a relationship with both parents. It emphasises that coming to court should be a last resort where there are no safety concerns and that parties should consider whether non-court dispute resolution might help resolve their dispute. It also encourages parents to see their dispute through their child's eyes. 

Parents who ignore the pre-action protocol do so at their peril. If a judge finds that the protocol has not been complied with, they can order that the gaps between court hearings be used for the parties to take any of steps outlined in the protocol that may have been missed. Or the judge can order that the proceedings are paused for the same purpose. For example, the judge can order parents to attend a MIAM or encourage them to try mediation.

Finally, the court also has the power to make costs orders (making one parent pay towards the other’s legal costs) and when deciding whether or not to make a costs order, a judge will take into account each parent’s conduct and their attitude towards trying to resolve things outside of the courtroom.  

Mediation: a collaborative alternative

Before going to court, parents are encouraged to try mediation. This is a voluntary process where a neutral third party helps parents reach an agreement.

Mediation is often quicker, less stressful, and more cost-effective than litigation. It also allows parents to retain control over the outcome, rather than leaving the decision to third party. A mediated agreement can often be tailored very specifically to a family’s circumstances and the whole process is flexi 

In some cases, mediators can involve the child to understand their views - especially if the child is old enough to express a reasoned preference. These mediators are specially trained to meet with children and are called child-inclusive mediators. They speak to the child in confidence and can feed back key messages to the parents.  

Arbitration: a private resolution option

Another alternative is arbitration. This is a private process where an arbitrator makes a binding decision. Sometimes people described this as having a private judge because the process is similar to what happens in court – except it can happen a lot faster, more flexibly and less formally than a courtroom.  Arbitration is available for a variety of disputes about children, including their education and  choice of school

Key benefits of arbitration include:

• Privacy: Hearings are confidential, with no media access
• Flexibility: Parents can choose the venue and timing – in fact pretty much every aspect of the process can be bespoke
• Speed: Arbitration can be quicker than court proceedings.
• Continuity: You have the same arbitrator throughout

Arbitration decisions are binding and can only be challenged on limited grounds so expect to be bound by the arbitrator’s determination. 

Five top tips

Here are some practical steps if you are facing a disagreement over the choice of your child’s school which can help you avoid needing to go to court:

• Start early: begin open and honest discussions well before school application deadlines and see if you can find some common ground.
• Stay child-focused: Keep your child’s needs and preferences at the heart of the conversation.
• Use written communication: set out your position clearly and respectfully.
• Consider mediation or arbitration: these options can help resolve disputes without escalating conflict and are also more cost and time effective (which is really important when you have time-sensitive deadlines to deal with)
• Seek legal advice: a solicitor can help you understand your rights and options.

Disagreements over school choice can be challenging, but they don’t have to end in court. By understanding the legal framework and exploring options like mediation and arbitration, separated parents can find solutions that support their child’s education and wellbeing.

If you’re facing a school choice dispute or simply want advice tailored to your situation, get in touch with our experienced family lawyers. We’re here to help you navigate the process with clarity, compassion, and practical guidance, helping you to focus on what matters most.