Parental responsibility for education
This note outlines the rights of parents and individuals with parental responsibility in respect of a child's education. It explains how parental responsibility can arise and the principles to be followed by schools where more than one individual has parental responsibility for a child.
Parents and individuals with parental responsibility
Definition of parent
The natural parents of a child, whether they are married or not.
Anyone who although not a natural parent has parental responsibility for a child.
Any person, who although not a natural parent, has care of a child.
Definition of parental responsibility
Parental responsibility (PR) is defined in section 3(1) of the Children Act 1989 (CA 1989) as all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to a child and his property. This means that those with PR:
Have the power to make important decisions that affect their child's upbringing, unless there is a court order in place specifying otherwise.
Are entitled to information about their child, unless there is a court order in place preventing such disclosure.
Who has parental responsibility?
The following individuals have or can acquire PR:
The biological mother (section 2(2)(a), CA 1989).
The father, if he was married to the child's mother when the child was born or has since married her (section 2(1), CA 1989).
The father, if he was not married to the child's mother when the child was born but he now has:
a child arrangements order (which replaced residence and contact orders);
a court order which gives him PR; or
a formal "parental responsibility agreement" with the mother.
A guardian of the child (usually appointed by a court or a will) (section 3(2) and section 5, CA 1989) (see Practice note, Appointing guardians in wills ( www.practicallaw.com/4-381-3720) ).
Someone who holds a child arrangements order (section 12, CA 1989) (see below, Court orders affecting parental responsibility).
A local authority if it is named in the care order for a child (section 33(3), CA 1989). In these circumstances, a local authority has a duty to consult the parents but is responsible for deciding what is in the best interests of the child.
Someone who holds an emergency protection order (section 44(4), CA 1989). For more information on emergency protection orders, see Practice note, Emergency protection orders (EPO) ( www.practicallaw.com/8-537-7606) .
A person who has adopted a child.
Unmarried fathers registered as the child's father at the time of birth (see below, Unmarried fathers of children born after 1 December 2003) (section 4, CA 1989, as amended by section 111, Adoption and Children Act 2002).
Both married parents or an unmarried mother have PR automatically and they continue to have it after separation or divorce. It can be removed only by an adoption order.
Other orders may determine or affect PR according to different circumstances. For example, a civil partner ( www.practicallaw.com/2-201-6423) may apply to the court for a PR order in respect of their partner's child.
Therefore, a school may find itself in the position of having to deal with several people who have PR for a child, which may create potential difficulties particularly if the school gets caught up in disputes between a number of adults each claiming to have PR for the child.
For information on Applying for or discharging a parental responsibility order, see Practice note, Applying for or discharging a parental responsibility order ( www.practicallaw.com/7-521-8571)
Guidance published by the Department for Education and the Welsh Government
In January 2016, the Department for Education (DfE) replaced its previously issued non-statutory guidance. The guidance, Understanding and dealing with issues relating to parental responsibility: Departmental advice for maintained schools, maintained nursery schools, academies, free schools, local authorities and dioceses, will not be reviewed again before January 2019. For more information, see Legal update, New guidance on dealing with issues relating to parental responsibility published ( www.practicallaw.com/1-621-8002) .
The Welsh Government issued its guidance, Parents and Parental Responsibility: Guidance for schools (NAFWC 12/2007), in 2007.
When does parental responsibility cease?
PR comes to an end when one of the following occurs:
The child reaches 18 years old.
The child is aged 16 or 17 years old and marries.
A child arrangements order expires or is discharged.
A court order is made terminating PR.
The child is adopted.
Court orders affecting parental responsibility
Under section 8 of the CA 1989, the following court orders may affect PR:
Child arrangements order. For more information, see Flowchart, Child arrangements programme ( www.practicallaw.com/2-542-9967) and Practice note, How to apply for, vary or discharge child arrangements orders ( www.practicallaw.com/6-522-3262) .
Prohibited steps order ( www.practicallaw.com/1-535-5028) which empowers the court to place a specific embargo upon the exercise of PR. For example, a prohibited steps order can be made preventing the child from participating in a form of worship against the wishes of the other parent. For more information, see Practice note, How to apply for, vary or discharge prohibited steps and specific issue orders ( www.practicallaw.com/6-531-3088) .
Specific issue order ( www.practicallaw.com/0-538-0405) which gives directions for the purposes of determining a specific question in relation to the child, for example allowing one parent to agree to a pupil changing school against the wishes of the other parent. For more information, see Practice note, Prohibited steps and specific issue orders: client guide ( www.practicallaw.com/7-523-3374) .
Unmarried fathers of children born after 1 December 2003
Since 1 December 2003, it has been possible for unmarried fathers to acquire PR by being registered as the child's father at the time of the child's birth (section 4, CA 1989, as amended by section 111, Adoption and Children Act 2002).
Unmarried fathers of children born after 1 December 2003, who did not register as the child's father at the time of birth, may now subsequently re-register the birth to acquire PR.
Section 4 (as amended) is not retrospective. Therefore unmarried fathers of children born before 1 December 2003 do not automatically acquire PR as a result of this change, even if they are registered as the child's father.
Unmarried fathers may still obtain PR by entering into a formal parental responsibility agreement as mentioned see above, Definition of parental responsibility.
The rights of parents in relation to a child's education
A divorced parent.
A separated parent.
A legal guardian.
A foster parent or local authority or voluntary organisation in which parental rights have been vested (see Fairpo v Humberside County Council  1 FLR 339, where the court held that a foster parent came within the definition of "parent" for the purpose of appealing the child's statement of special educational needs ( www.practicallaw.com/0-386-0370) .
Generally, those with automatic PR, those who have it by virtue of a section 8 order and those who are parents in accordance with section 576 of the EA 1996 (as above) normally have the following parental rights:
To attend a school's annual parents' meeting.
To express a preference when choosing a school.
To stand for election or vote as a parent governor.
To be notified of their right to appeal against a child's exclusion. For more information on exclusion, see Practice notes, Pupil exclusion: England ( www.practicallaw.com/2-500-3950) and School exclusions: Wales ( www.practicallaw.com/2-564-5947) .
To receive information on the child's education. For details of the right of access and the right to receive annual reports on the child's achievement, see Practice note, Pupil records and information ( www.practicallaw.com/6-385-6030) .
To withdraw the child from religious education and collective worship (section 71, School Standards and Framework Act 1998) and sex education (section 405, EA 1996). For more information on the parental right to withdraw a child from sex education, see Practice note, Sex education: schools' obligations: Parental right of withdrawal ( www.practicallaw.com/5-500-6711) .
To initiate or be involved in the procedure for obtaining a statement of special educational needs ( www.practicallaw.com/0-386-0370) for the child.
Any dispute between persons sharing these rights would need to be resolved between them and not by the school.
Absent parents and parents without day-to-day care of child
Absent parents may exercise no care of the child but may still have PR if they fulfil the necessary criteria (see above, Definition of parental responsibility) or have education rights as parents under section 576 of the EA 1996 (see above, Definition of parent).
Absence does not affect their rights set out above, but it is likely to be significant in deciding any dispute about rights. For example, it is likely to be the parent who has PR under the terms of a child placement order who is the first contact in an emergency.
The DfE has confirmed that there is nothing in law that requires schools, when seeking consent for school trips, to contact both parents where both the resident and non-resident parent have PR. However, in cases where the school considers it necessary or has been asked to seek consent from both parents, the DfE guidance indicates that it is best for the school to assume that parental consent has not been given unless both parents have given their consent. That approach will ensure that the school has treated the views of each parent equally and will help to safeguard the school's position in terms of exposure to any potential civil liability where, for example, the child is injured while on a school trip.
For a specimen example of a consent form for obtaining parental permission for a pupil to go on school trips and receive medical treatment while on trips, see Standard document, Parental consent form: school trips and medical treatment ( www.practicallaw.com/8-530-3347) .
Rights of absent parents
Everyone who is a parent has a right to participate in decisions about a child's education, even though the school's main contact is likely to be the person with whom the child lives on school days. Unless there is a court order limiting an individual's exercise of PR, such as an order preventing the absent parent from having contact with the child, the school and local authority ( www.practicallaw.com/4-386-3828) staff must treat all parents equally.
Right of contact
Where there is a parental dispute, the family should be encouraged by the school to keep them fully informed of what is happening and provide them with any court orders that may affect school life, such as child arrangement orders, that may prohibit one parent from collecting the child or having direct or indirect contact with them in school.
It is not up to the school to decide, where the parents have separated or divorced, whether an absent parent should have contact with the child at school. Where a child arrangements order is in force, unless there is also a contact order dealing with the issue, it is for the child's carer to determine contact. Therefore, if an absent parent requests contact at school, the school should:
Seek consent from the parent who cares for the child.
Permit contact only if it is clear under the terms of an order or the parent who cares for the child consents and it is considered safe and reasonable to do so.
If the parents cannot agree they should be invited to resolve their differences with legal advice rather than through the school, see Disputes between parents below.
Rights of foster parents
Legally, foster parents do not have PR for a child in their care, although they may do "what is reasonable in the circumstances for the child's welfare" (section 3(5), Children Act 1985). What is reasonable depends on the urgency of the situation and whether it is practicable to consult the person with PR. As a foster parent has day-to-day care for the child, they are arguably a "parent", as defined by section 576 of the EA 1996, and therefore entitled to make day-to-day decisions in relation to education, for example provide consent for school trips and be contacted in times of accident or emergency.
Disputes between parents
Schools should endeavour not to get involved in disputes between the parents of pupils following breakdowns in their relationships. Although it is appropriate for a school to seek copies of court orders (from the parents or their solicitors), so that the school records may be kept up-to-date, such orders should not be relied upon as they may be changed without the school being notified. If a parental dispute does arise, the school should obtain a copy of any relevant current order, together with an assurance that the relevant order remains valid.
A school may be asked to provide a witness statement for use by a parent in custody court proceedings. For information on what a head teacher should do if in this situation, see Practice note, Schools hotline FAQs: Witness statements ( www.practicallaw.com/9-385-1781) .
Changing a child's surname
A pupil should be registered on the school admission register with the name that appears on their birth certificate even if they are known under a different name.
Although an adult may change their own surname informally or by deed poll, a parent who wishes to change the surname of their child must have the consent of all those who have PR for the child, or a court order specifically permitting them to have the child's surname changed (section 13, CA 1989). Such consent should be in writing.
Even informal arrangements for a child to be known as a new name or via a hyphenated name require consent. In Dawson v Wearmouth  UKHL 18, the court held that a child's surname should only be changed if it is the best interests of the child.
If parents have divorced or separated and there is no child arrangements order in force, neither parent may change the surname of the child or arrange for the child to be known by another name without the consent of the other.
Where the mother alone has PR for the child, the father is not entitled to object to a change of the child's name, although he may be able to make an application to the court (section 13, CA 1989).
A child of sixteen may change their name without their parent's consent.
For information on the procedure and requirements for an individual (adult and minor) wanting to change their name by deed poll, see Practice note, Change of name: individual by deed poll ( www.practicallaw.com/4-524-4406) and Standard document, Change of name deed: individual (minor) ( www.practicallaw.com/6-525-1207) .
Schools must not restrict eligibility to nominate, vote or otherwise participate in parent governor elections, to parents holding parental responsibility. Regulation 5 of the School Governance (Constitution) (England) Regulations 2012 (SI 2012/1034) defines "parent" as including not just those with parental responsibility but natural parents and anyone who cares (or has cared for) a child.
Practical tips for schools
It is important for schools to know who are the pupil's parents and whether there are any court orders limiting an individual parent's PR. The following are useful tips to ensure that schools record the necessary information, both on the school admission register and in a pupil's individual record, so that they can deal with non-resident parents who wish to be involved in their child's education. For more information on pupil records, see Practice note, Pupil records and information ( www.practicallaw.com/6-385-6030) and for a specimen consent form for school trips and medical treatment, see Standard document, Parental consent form: school trips and medical treatment ( www.practicallaw.com/8-530-3347) .
The head teacher:
Should request the names and addresses of every parent and carer of the pupil so that they can:
record who they are and with whom the pupil usually lives with;
note emergency contact details for the parents and carers; and
inform the resident parent that the non-resident parent is entitled to be involved in the child's education, although the school can do nothing if the resident parent refuses to share information on the pupil with the non-resident parent.
May wish to request additional details such as dates of birth and mother's maiden name as an additional security check for when parents contact the school, see Keeping Pupil Registers: 2011 guidance.
Should note details of any relevant court orders in a pupil's record, so that the parent with whom the child resides can be contacted if the child is ill or if the child is collected by someone different. It would be good practice to have administrative arrangements in place to ensure that these details are updated on a regular basis.
Should not accede to any request from a parent to change the pupil's name in the school records, following the breakdown of a marriage unless consent to effect the change is given in writing from the other parent.
If directly contacted by the non-resident parent with a request for access to information on their child, should take reasonable steps to ensure that the individual is the child's parent before providing that information.
Should be mindful to protect the private data of each parent from any other and avoid inadvertent disclosure (particularly as some parents will have been, or may be risk of being, a victim of domestic violence.