Payne Hicks Beach

Payne Hicks Beach

01 June 2020

Is it safe to send my child back to school?

On the 18 March 2020 the Education Secretary, Gavin Williamson, announced that schools would close on 20 March to all pupils save for the children of key workers.  Since that date children (and parents) have been adapting to remote learning with varying degrees of success.  All formal examinations have been cancelled for this academic year causing concerns particularly amongst those students due to sit GCSEs and A-levels this term.

On Monday 11 May Boris Johnson issued his 50 page roadmap on how the country would emerge from lockdown.  Unfortunately, for the vast majority of children it appears that this academic year will not see a return to school and that the existing remote learning arrangements will remain in place.  However, this will not apply across the board and there will be a limited phased return for those children in reception, year one and year six.

This announcement has given rise to the latest parenting dilemma – when schools reopen – should parents send their children back to school at all while the pandemic remains a serious health concern.  The government has made it clear that parents will not be penalised if they do not send their children back to school. 

It is not difficult to see that this has the potential to become an issue between separated parents where one parent believes the children should return to school and the other disagrees.

The answer to this question, as with many involving the welfare and best interests of a child, comes down to the proper exercise of parental responsibility.

Parental Responsibility

In most circumstances the parents of a child will both have parental responsibility for their child.  Parental responsibility is defined in the Children Act 1989 as all of the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to a child and his property.  In most instances parents are able to discharge these duties consensually but where they disagree it may prove necessary to engage the court’s assistance to resolve issues that might arise.

What sort of issues might parents disagree on?

Parents may disagree on a number of aspects of their children’s upbringing including their religion, whether they should be vaccinated, what medical treatment they should receive and their education.  If the parents cannot agree on a course of action then one of them may make an application to the Court pursuant to section 8 of the Children Act 1989 to ask the Court to resolve the issue for them. 

Disagreements over education

In relation to child’s education (and in more normal circumstances) parents may disagree on whether a child should be educated privately or in the state sector, or be enrolled in a school offering the International Baccalaureate as opposed to A-levels.  Parents may disagree on whether a child should attend a single sex or co-ed school or whether they should attend day school or board.  By way of example, an issue that the courts had to grapple with in Re G (Education: Religious Upbringing) [2012] EWCA Civ 1233 was whether the children of Hasidic Jewish parents should be educated in a  Hasidic single sex school (per father) or in a co-educational orthodox school (per mother) which would enable them to do A-levels and go on to further education.  In reaching a decision in the best interests of the children the court has to engage in a delicate balancing exercise to weigh up the competing arguments.  In Re G that resulted in the mother’s preferred option being selected as it offered the children wider opportunities in later life.

Coronavirus and education

Returning to the spotlight on the coronavirus pandemic, it is clear that many parents have significant concerns about their children returning to school in the current environment.  A petition urging the government not to force parents to send their children back to school even when they reopen had been signed by over half a million people at the time of writing.

Where one parent wishes the children to return and the other opposes it what will the courts do?  In the absence of an agreement, one parent will need to issue an application to the court for a Specific Issue Order to ask them to determine this issue.  The court’s primary consideration will be the welfare of the child.  In particular the factors that the court will have to have regard to under the Children Act are:

  1. the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
  2. his physical, emotional and educational needs;
  3. the likely effect on him of any change in his circumstances;
  4. his age, sex, background and any characteristics of his which the court considers relevant;
  5. any harm which he has suffered or is at risk of suffering;
  6. how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
  7. the range of powers available to the court under this Act in the proceedings in question.

The court will therefore have to engage in a delicate balancing exercise which will be unique to the particular circumstances relating to the child or children in question. 

The evidence to date appears to indicate that children are less likely to get coronavirus and, if they do, they do not appear to develop serious symptoms in most cases.  In China, Italy and the USA children account for less than 2% of the reported infections.  That said, factors that are likely to be relevant to the exercise of the courts discretion might be:

  1. If a child, or member of that child’s family, has underlying health conditions or is considered to be a vulnerable person;
  2. If a child is fearful for his own health and safety and there are concerns that it will be a burden on his mental health to return;
  3. The emotional needs of children may be relevant, particularly for children who are exhibiting signs of mental distress in isolation.  For certain children who are very routine orientated, a return to the structured school day may be particularly important;
  4. If a child is failing to engage effectively online it may be more important for them to resume schooling in person;
  5. For children coming up to critical exam years it may be more important for them to resume classroom teaching as soon as possible;
  6. It may be more important for children with special educational needs to resume teaching more quickly as they may struggle to keep up with their peer group otherwise and may require the specialist one to one or in person support they have come accustomed to; and
  7. The parents’ circumstances may be relevant.  If both parents are working full time from home and are only able to offer limited support for the child’s schooling that may be a factor the court might take into account.

Conclusion

As with all matters relating to children, the court’s decision will be entirely focussed on the best interests of the particular child concerned.  Prior to making an application to the court the parents should, of course, explore whether they are able to reach a consensus before resorting to Court proceedings.  If direct conversations are unsuccessful then the services of an experienced mediator or arbitrator may be able to assist the parents to reach an agreement.

Article by Kelly Gerrard, Senior Associate and Knowledge Development Lawyer in the Family Department. For further information, please contact Kelly Gerrard by email or your usual contact in the Family Department or, alternatively, telephone on 020 7465 4300.

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This publication is not intended to provide a comprehensive statement of the law and does not constitute legal advice and should not be considered as such. It is intended to highlight some issues current at the date of its preparation. Specific advice should always be taken in order to take account of individual circumstances and no person reading this article is regarded as a client of this firm in respect of any of its contents.

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