Educating the educators, policing the parents, safeguarding children? Schools and separation

Earlier this month, I answered an FT reader’s question about what happens if separated parents disagree about their child’s schooling.

It feels as though issues arising between parents on separation are becoming ever more numerous and complex, and that there is a weight of expectation on schools to be both a referee for the parents but (more important) a watching eye over children affected by parental conflict. So how widespread an issue is this for schools? What are the issues which may arise for them where parents are separated or divorced? What are/should be the extent of their responsibilities and how good are they at meeting them? And how should parents engage with the school/each other to avoid problems arising in the first place/quickly resolve them if they do?

The extent of the issue – some stats around family types and separation

Schools will interact with a number of different family types – married/civil partnered parents; cohabiting parents; separated/divorced parents; and single parent families. The first two family types can run into difficulties during/after separation and may experience some or all of the issues set out later in this blog; for the single parent families, there will not be another parent to be in dispute with, but (as with the other family types) there may be difficulties with the child which may necessitate the involvement of third parties, such as social services.

Trying to work out the number of children of separated parents is harder. The latest ONS bulletin Families and Households in the UK – 2019 was published in November – https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/families/bulletins/familiesandhouseholds/2019

It shows that in 2019, married and civil partner families accounted for the largest share of families with dependent children (61.4%), followed by lone parent families (22.3%) and cohabiting couples (16.3%). However, some noteworthy trends in the past decade –

  • The number of cohabiting couples with dependent children has increased by more than one-quarter;
  • The number of married/civil partner couples with dependent children has increased by 4.8%;
  • The number of lone parents with dependent children has decreased by 9.8%.

But what of separation, which is where the really thorny issues often arise?

In England and Wales, there were 90,871 divorces of opposite-sex couples in 2018 and 428 divorces of same-sex couples. https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/divorce/bulletins/divorcesinenglandandwales/2018

Assuming (crudely) that the average family has 1.89 children, that means that around 173,000 children were affected by divorce in 2018. Note that the year prior, 2017, there were 101,669 divorces of opposite-sex couples and 338 divorces of same-sex couples, meaning that closer to 193,000 children were affected by divorce that year.

However, that doesn’t tell the whole story, as it doesn’t deal with the ending of unmarried parent relationships. We know that cohabiting couples are the fastest growing relationship type (around 3.4 million couples, having increased from 15.3% of all families to 17.9% in a decade and expected to double by 2032) and they are widely acknowledged to be a less stable form of union than marriage/civil partnerships. However stats for the ending of cohabiting relationships are hard to come by as there is no interaction with the state when a cohabiting relationship ends, save to the extent any financial orders are made for children or child arrangements orders.

What we do know is that births within marriage/civil partnerships have gone down significantly in recent decades, reflecting the decrease in marriage numbers and increase in cohabiting couple families https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/livebirths/bulletins/birthsbyparentscharacteristicsinenglandandwales/2016

As of 2016 (the most recently available statistics), only just over half of births were within married/civil partnered relationships, compared to just under 80% 30 years ago. Given what we know about cohabiting relationships being less stable than marriage, it can be surmised that at least the same number of children who are affected by divorce each year will be affected by the separation of unmarried parents, and probably many more. Indeed, it may be that taking both family types, as many as 500,000 children a year are affected by parental separation. Whatever the true figure, what can be said with confidence is that issues arising from parental separation are prevalent and something with which schools up and down the country must grapple every day.

The school/teacher population

So with around half a million children affected by parental separation each year (and by that I mean newly separated parents; of course there are hundreds of thousands of children in schools whose parents are already separated), how well-placed are schools to respond in terms of their numbers?

Continuing my passion for stats, I give you the DfE publication Schools, pupils and their characteristics, January 2019, published last summer https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/812539/Schools_Pupils_and_their_Characteristics_2019_Main_Text.pdf

Headlines :

  • there were 8.82 million pupils in all schools in England in 2019, an increase of 1% year on year (and a 9% increase in a decade); within that around 580,000 were in independent schools, where numbers have been falling since 2017 and now have c2,300 fewer pupils since then
  • the number of pupils in state funded secondary schools rose for the fifth year in a row and had a much greater increase in population than primary schools in 2019
  • 15.4% of pupils were eligible for and claiming free school meals, the highest proportion since 2014
  • the average infant class size decreased slightly year on year to 27.1 (a figure which has been fairly constant for the past decade)

Pausing there – even if we assume (conservatively) that 400,000, rather than half a million, children are affected by parental separation each year, that is over 4.5% of the school population; and of course that is only in one year and takes no account of those whose parents have already separated. In other words, an additional 400,000 children every year.

What is particularly striking (and well-known) is that the teaching workforce has not been keeping pace with the growth in pupil numbers, adding to the pressure on teachers within the system – see School workforce in England : November 2018 published last summer https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/811622/SWFC_MainText.pdf

There was only a 2.7% increase in the full-time teaching workforce over an 8 year period, contrasted with an 8% increase in the school population over the same period. The problem is especially acute in secondary schools, where there has been an almost 7% drop in full-time teachers in the past 8 years whilst the number of pupils has stayed fairly constant.

Guidance for schools about separated parents

The DfE publishes/keeps regularly updated a guide for schools, Understanding and dealing with issues relating to parental responsibility https://www.gov.uk/government/publications/dealing-with-issues-relating-to-parental-responsibility/understanding-and-dealing-with-issues-relating-to-parental-responsibility#dutiesundereducatonlaw

It defines

  • Who is a parent
  • what parental responsibility is, who has it and the key effects of a second parent acquiring it
  • different types of court order which settle different areas of dispute in relation to a child’s upbringing or the exercise of parental responsibility

The meat of the document is contained under headings which start, “General principles for schools and local authorities”. Those principles include :

  • Everyone who is a parent can participate in their child’s education; pupils are to be educated in accordance with the wishes of their parents [so far, so good]
  • all parents can receive information about the child (though for day to day purposes the school’s main contact is likely to be a parent with whom the child lives on school days) [pausing there – why? This may be administratively simpler, but as many dads still have an alternate weekend-type arrangement, they shouldn’t be cut out of the picture just because Monday to Friday happens to be spent with mum]
  • individuals who have parental responsibility for/care of a child have the same rights as biological parents, e.g. to receive information like reports, be asked to give consent e.g. to trips, be informed about meetings involving the child
  • school and local authority staff must treat all parents equally, unless a court order limits a parent’s ability to make educational decisions, participate in school life or receive information about their children
  • (crucially) – “Where a parent’s action…conflicts with the school’s ability to act in the child’s best interests, the school should try to resolve the problem with that parent but avoid becoming involved in conflict. However, there may be occasions when a school needs to decline requests for action from one or more parents. In cases where schools cannot resolve the conflict between separated parents, they should advise the aggrieved parent to pursue the matter through the Family Court”. [Note here – this places quite a high burden on the school. It would make sense for local practitioners to work with schools so that schools are aware of different dispute resolution services available locally, thereby bypassing both detailed school intervention and court].

Some specific areas covered by the note :

  • Information sharing : having PR doesn’t allow a parent to obstruct a school from carrying out their duties under legislation (e.g. if a parent asked a school not to share educational information about the child with the other parent). If a school doesn’t know where the non-resident parent is, it should make the resident parent aware that the other parent is entitled to be involved in their child’s education and request that the information be passed on. If the resident parent refuses to share information, and refuses to provide contact details so the school can deal direct with the non-resident parent, the school can do no more. Schools aren’t required to seek the consent of the resident parent before recording the contact details of the non-resident parent or sending them information; and there’s no requirement to request a solicitor’s letter or court order. [note – I always tell my non-resident parents to let the school know, immediately on separation, how they may contact them and to be clear that they want to see all the same information from the school as the resident parent. Occasionally I have had a school contact me to check the position and I have sent a letter/provided evidence of PR if so]
  • Obtaining consent : generally schools only seek the consent of the resident parent to outings and activities, unless the decision is likely to have a long-term and significant impact on the child or the non-resident parent has requested to be asked for consent. Where both parents’ consent is requested, schools may wish to assume that parental consent hasn’t been given unless all parents agree. Schools shouldn’t become involved in any disagreement but might want to signpost to advice/court.
  • Safeguarding : All schools are required to have regard to the Keeping Children Safe in Education statutory guidance, referenced further below.

The sort of issues children (and therefore schools) face

Disagreement over choice of school

I find that I’m having an increasing number of parents disagreeing over choice of school, both when I work with couples as a mediator and when I advise one of them as their solicitor. I have had two recent instances where money was no object for education and the disagreement was as to which of various top private schools the child should attend. In another two cases, the disagreement has been as to boarding versus being a day pupil. I have a mediation where the couple don’t agree as to the type of special educational needs support their child should receive. I also have an ongoing case – not my first of this type – where one parent wants the child to have a state education, the other a private education. Sometimes this particular issue arises for moral/ethical reasons; or it may be because the parent who objects would wish any future children they go on to have with a new partner to go to the same school as their older sibling but cannot afford that.

I also had one especially worrying case a number of years back where my client, the father (in whose favour a shared residence order, as then was, was in force and who also had parental responsibility) discovered that the mother, from whom he was long separated, had first of all harassed the child’s private school to the extent it became impossible for him to remain there (after she had never been keen that he attend in the first place); and then, having had her way and got him into an inner London comprehensive school, disenrolled him without the school thinking to tell my client. Various letters were written to the local authority reminding them of parental responsibility and the legal position.

But to summarise the whole smorgasbord of disagreements which may arise in relation to schooling –

Ø  State versus private

Ø  Co-ed versus single sex

Ø  Boarding (full-time or weekly?) versus day pupil

Ø  Disagreement about different private schools

Ø  Formal education versus home instruction

Ø  Different curricula, e.g. GCSEs versus International Baccalaureate

Ø  Religious instruction or not

The legal position is that everyone with parental responsibility for a child has a right to be involved in decisions relating to a child’s education. A useful Commons Briefing on parental responsibility, what it is and how it is gained and lost, is here https://researchbriefings.files.parliament.uk/documents/SN02827/SN02827.pdf

In the event of disagreement about a child’s education, anyone with parental responsibility (usually a parent) can apply for a ‘specific issue order’ (used to look at a specific question about how a child is being raised, resulting in a positive order from the court) or a ‘prohibited steps order’, blocking one parent from taking a particular course.

Although there are not (to my knowledge) stats about how many applications are being made to court about school disputes, the latest family court quarterly stats deal with the number of private law children cases more broadly and chime with my own experience – there was a 5% increase in the number of private law cases started in Q3 2019 compared with a year prior and a 10% increase in disposals. There were almost 22,000 children involved in those applications. These figures were the highest since mid-2013, when the legal aid cuts took effect.

So what may be the reasons for a growing number of schooling disputes? My own theories –

  • The removal of legal aid from April 2013 onwards has undoubtedly been one of the main drivers behind the increase in the number of overall children cases going to court. Fewer people are signposted to advice and so are pursuing their own claims and not resolving them out of court
  • There are ever greater choices – types of school, curricula, religious instruction, etc – leading to more scope for disagreements
  • There are more couples with spouses from different backgrounds who may have different views as to the best type of education for their child at the end of their relationship
  • Greater mobility may mean that more parents are looking to move on separation and that would trigger the need to look again at schooling, at a point when a child may otherwise be settled in his/her education.

In the absence of the parents being able to reach agreement, the court or an arbitrator will have to do so by reference to a welfare check-list, including the ascertainable wishes and feelings of the child concerned; their physical, emotional and educational needs; the likely effect on the child of any change in his circumstances; the age, sex, background and any characteristics of the child which the court considers relevant; any harm which the child has suffered or is at risk of suffering; and how capable each of the child’s parents are, and any other person in relation to whom the court considers the question to be relevant is, of meeting the child’s needs.

Therefore the Court will look at factors such as the location of the schools proposed, how the child would travel to the school, the wishes of the child, the level and type of learning the child would receive, whether the child has any specific needs and how they would be dealt with etc.

In Re G (Education: Religious Upbringing) [2013] 1 FLR 677 Lord Justice Munby created the concept of the “judicial reasonable” parent and laid down the three objectives of the Court when making a decision about the upbringing of a child:

  • Recognise that equality of opportunity is a fundamental value of society. By this he meant equality between different communities, social groups, genders etc.
  • Foster, encourage and facilitate aspiration. 
  • Bring the child to adulthood in such a way that the child is best prepared to decide the type of person they want to be and the type of life they wish to lead.

The views of the child’s current school/ teachers are likely to be taken into account when the court/arbitrator considers which school is appropriate going forward, and this is where a school is likely to find itself dragged into parental disagreement. Ordinarily I suggest to my client (or to couples I am mediating) that they collate recent school reports and try to talk to the child’s class teacher, housemaster/mistress or headmaster/mistress (as appropriate) about their view as to what makes this particular child ‘tick’ and whether he or she is more likely better suited to an especially academic school, one with a sporting tradition, music etc etc. They will be best placed to know the environment in which a child will thrive and to make recommendations based on that. I always encourage the parents, where possible, to meet with the school together so as not to place the teachers in an impossible position; better for the parents to be hearing the same message at the same time.

Tips for parents

As far as possible, I try to get parents to reach their own decision, assisted by the school’s recommendations but without trying to delegate responsibility for a decision to the school wholesale. The best advice is to –

  • Keep school options open; make multiple applications, even if you don’t agree with some of the schools your ex has suggested/have your child do entrance exams for all as applicable;
  • Be open-minded. Sometimes parents do change their mind as a result of further investigation and come round to the other parent’s point of view. Go and visit all schools on the list; even if you don’t change your mind, it will make you seem more reasonable (and better placed to explain your objection) if you have explored every option;
  • Work with the current school to find what they think would best suit your child, without delegating the decision wholesale;
  • Try to reach agreement through mediation – far better than asking a judge, who won’t know your child, to decide;
  • Don’t put the school in the middle; try to approach them jointly for guidance and in an open-minded manner;
  • Allow time to resolve the issue; a court process takes time and won’t easily dovetail with the timetable for decision-making. Especially where the parents are looking at private schools, the window between exams/interviews/offers, and having to make a decision, can be as narrow as two weeks. In those circumstances, arbitration can be a really useful process as one can arrange the hearing to take place in the short window once offers are known, and a decision can be made quickly and in time for the school to be notified.

Disagreement at the school gate over whose “turn” it is to collect the children

I have had this happen in a number of my cases. I can think of one particular case where a couple were coming into mediation with me for the first time and upon arrival at my office, one of them handed over a letter their children’s primary school had sent to them, berating them for turning up at the school gates one day the week prior and having a blazing row over whose turn it was to collect the kids, leaving their two young children in floods of tears. In that case, the steely headmistress had hauled both parents into her office, purported to impose arrangements for the next few days (which, to their credit, they stuck to) and then suggested that they go to mediation to sort things out, which they duly did.

In another of my ongoing cases, where we are concerned about parental alienation, it is not uncommon for the mother to turn up early at the school gate to collect the children, so as to thwart dad’s attempt to collect them minutes later. We have learned that sadly, the existence of an Order (which, in that case, we have) is not enough and it is necessary to notify the school in advance which are the specific Fridays upon which dad is to collect the children. Again, of course, it would be practically difficult for a school to refuse the mum if she did come to collect the children when she shouldn’t, particularly as they are quite young and have already been exposed to conflict.

I have also had cases involving older children where the child has told the school, upon one parent coming to collect them, that they want to go home with the other parent. My experience of that is that, completely understandably, schools in that situation stick to the letter of any Order and don’t try to go behind it. However in certain circumstances the school can and do seek to involve social services, where they think e.g. that the child is at risk of emotional harm and no steps are being taken through the courts to change the status quo despite the child’s obvious unhappiness.

Schools in these “tug of war” type situations are in an invidious position. They are rightly careful to ask each day who is due to collect a child (as I learned to my peril the first time I went to collect my nephew from reception class and he swore blind to his teacher that he had never laid eyes on me before, causing her to question me at length thinking that I was trying to abduct him; I have just about forgiven him 9 months later). But what can they do when there is a dispute?

The most obvious answer is to do as the headmistress did with my mediating couple and intervene, for the sake of the children, making them see that their behaviour is not acceptable. I never knew how she managed to broker interim arrangements between the parents – I needed her as a co-mediator when I started my work with what turned out to be a pretty intractable parenting dispute – and then manage to write a lengthy letter summarising their behaviour, why it was unacceptable and what they had agreed pending mediation.

The Understanding and dealing with issues relating to parental responsibility guidance makes clear that schools should ask parents to ensure that they provide schools with a copy of the most recent child arrangements order in place, to support the school’s duties in respect of child safeguarding (for which parents may need the court’s consent). Of course, it can take many weeks and months to get to that point and it is precisely when things are at their most raw that there is no Order yet in place. And indeed, in around 90% of cases involving separating parents, they reach their own informal parenting agreement.

Ultimately, where the school cannot resolve the conflict, they must encourage parents to go through the Family Courts. And see below for a school’s responsibilities where the extent of the dispute is such that the conflict is beginning to affect the child’s emotional wellbeing, or other concerns.

When safeguarding concerns about children arise

5 years ago, Resolution commissioned research about the impact on children of parental separation and divorce. Among the quite shocking results, the adverse impact on children’s exams of acrimonious divorce was brought to the fore. Many children turned to alcohol and drugs. 82% of those surveyed, aged 14-22, who had experienced parental separation said it is far better for kids if unhappy parents separate rather than stay together for the sake of the children. https://www.theguardian.com/lifeandstyle/2015/nov/22/children-divorce-resolution-survey-rather-parents-separate

I have had plentiful cases where it is either the school who has first picked up and reported concerns about a child; or else they have played a pivotal role in social work which has followed parental separation. In a present case, the local authority’s involvement was triggered by the police, who kept getting called to acrimonious handovers (invariably the mum refusing to hand over the kids, despite an Order being in place); what the school have been able to contribute to the work so far has been invaluable.

I have referenced already the Keeping Children Safe in Education (“KCSIE”) statutory guidance https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/835733/Keeping_children_safe_in_education_2019.pdf

KCSIE is a comprehensive guide for teachers of what to look out for and what to do if safeguarding concerns arise. It emphasises that all who come into contact with children and their families has a role to play in safeguarding children. Schools are especially important as they are in a position to identify concerns early and provide help for children. A child in immediate danger or at risk of harm should be referred immediately to children’s social care or the police and all schools are required to have a designated safeguarding lead. Details of the specific role of school staff are set out at part one of KCSIE; and the sort of things they should look out for are at paragraphs 18 to 31.

It shouldn’t be forgotten, of course, that much of what is referenced in KCSIE as being things to watch out for – being in a family circumstance presenting challenges for the child, misusing drugs/alcohol, emotional abuse, neglect – may come about as a result of parental separation or associated court proceedings. Therefore teachers are right to be especially alert where they are aware of this in the background.

What should parents do?

Whilst it would be all too easy easy for parents, especially those who are separated, to delegate all responsibility for these issues to the school and let them be the arbiter of disputes, that is neither realistic nor fair. Schools have a duty to all of their pupils and there are obvious resource limitations.

First and foremost, separated parents should be doing all that they can to shield their children from conflict and reach their own agreements so that the school does not need to intervene. Organisations like Resolution have plentiful guidance for parents about how to ensure that their children are put front and centre in any divorce and protected from the fall out

Talking to your children about the divorce

Tips for parenting during a difficult divorce

The Parenting Charter is also a useful resource to which parents should refer during their separation

A plug also for Only Mums/Only Dads’ fab book, 101 questions answered about separating with children, a copy of which every newly separated parent should acquire/be encouraged to acquire https://bathpublishing.com/products/101-questions-answered-about-separating-with-children

One chapter in the book deals with what schools need to know about parental separation and suggests :

  • Parents’ first action on separation should be to let the school know that separation has happened, having discussed with the children the fact that that conversation is to take place, and what is to be said/to whom, as a child will often seek out a trusted adult at school to share their feelings with. Schools should be given contact details for both parents, the order in which they should be contacted and contact plans.
  • Schools should provide copies of all correspondence to both parents and parents need to be proactive about letting the school know if this isn’t happening.
  • Parents should present a united front and show that they both value and care about the child’s education, putting differences aside for the child’s benefit.
  • A shared response to any problems at school is helpful; working with the school to get to the root of any problems and parents talking honestly to each other makes a huge difference to a child.
  • Schools have thoughts about contact arrangements, uppermost – don’t use them as a weapon; and don’t withdraw time because this can leave a child distressed. Certainty in arrangements is key.

In conclusion

I have seen both good and less good practice from schools when it comes to dealing with children of separated parents. It is right that they need to be on top of their statutory safeguarding duties; and to know at least the basics of parental responsibility and who has it. But expecting them to police parental disputes is unrealistic.

When I tweeted about my FT piece earlier this month, it was clear that many have dissatisfaction with the way in which schools engage with separated parents –

Schools have an invaluable role to play when families break up. It would be good to start a dialogue about how we may harness best practice, eradicate less good practice, and all work together to provide joined-up thinking for the children of broken homes, with everyone with whom they engage rowing together for their benefit. A good starter for ten may be engagement at grass roots level between local lawyers, therapists, social workers, teachers and GPs, so that everyone is educated in roles and responsibilities, knows the legal framework and has a little black book of who to refer to if parents need therapeutic, mediated or other assistance. Ultimately, this has got to be to the benefit of children everywhere.

Jo Edwards

Published by joedwardsfamilylaw

Chambers HNW Family Lawyer of the Year 2019, Head of Family Law Team of the Year 2017, directories-ranked and featured in Tatler’s new Address Book of HNW family lawyers. Over 20 years’ experience working as a solicitor and mediator with separating families; since February 2016, Head of Family at Central London firm Forsters LLP. Separation & divorce, money & children, nuptial/cohabitation/separation agreements. Adept at court but prefer DR. Former Resolution chair, media commentator, campaigner for family law & family justice reform.

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