Balancing the rights of parents and the duties of schools

Posted by Matthew Smith on
Almost every parent will have agonised at some point about their child's education – which school should they attend, are they achieving their potential, how should they deal with any problems their child is having at school?   It is hard enough to make such decisions when parents present a united front, but it is much more difficult when parents are separated or divorced, particular if they don't share the same views. 

This in turn creates challenges for schools – for example, who should they contact about key decisions or in emergencies, and how do they manage parental disputes?  The Department for Education has recently published guidance for schools and local authorities on understanding and dealing with parental responsibility, and a summary of the main issues is provided below. 

General principles

School teachers and local authority staff should be aware that, whilst their paramount concern should be the welfare of the child, they also have a duty to treat all parents equally, unless there is a court order limiting an individual's parental responsibility.  Every parent has a right to participate in decisions about their child's education, has a right to receive information about the child, and has a right to participate in statutory activities, such as parent governor elections.

For the purposes of education law, a parent is not only the child's biological parents and those who have acquired parental responsibility, it also extends to any person with whom the child lives and who looks after the child, irrespective of their relationship to the child.

Information sharing

One clear example of how schools should treat parents equally is in the sharing of information. 

For children who attend local authority maintained schools, the school has a duty to give parents access to, or copies of, a child's educational record on request.  For example, if a child lives with his father and step-mother (who doesn't have parental responsibility), the step-mother will have a right to see the child's school records regardless of whether the child's natural mother or even the child himself objects.

Where children attend academies, the academy is required to provide each parent with an annual written report of the child's progress and attainment in the main subject areas taught.  Where the academy does not have an address for a non-resident parent, the academy must request that the resident parent passes on the report.

Where schools have a safeguarding concern, they must decide on a case by case basis what information (if any) is shared with parents.  Any information on such issues should only be shared if it is considered to be in the best interests of the child. Schools should liaise with the designated safeguarding lead working with children's social care when deciding what information to share. 

Schools also have a duty to protect the private data of each parent and there will be cases, for example in domestic violence situations, where it is vital that such information is not disclosed.  Schools should be particularly careful when sending out reports to parents who do not live together that the other parent's email and/or postal address does not appear on the correspondence.

Consent

Where schools require consent from parents to enable a child to participate in school activities e.g. to go on a school trip, the headteacher need only seek the consent from the resident parent, unless they believe the decision is likely to have a "long-term and significant impact" on the child.

If the school feels it is necessary to consult both parents, or has been expressly asked to seek consent from both parents, the school should assume that consent has not been given, unless both parents provide consent.

Where consent is needed for emergency medical treatment, the need to safeguard the child's welfare should be paramount.  It would, for example, be reasonable for a school to take a child to hospital if necessary but the school should inform all parents if they have asked to be kept informed.

Administration

To ensure the school complies with its legal duties, headteachers should ask parents or guardians for full contact details of all parents when they register the child at the school, and ensure the school has a record of who to contact in case of a medical or other emergency.

The school should also make sure that all the parents' names and full contact details are recorded in the admissions register and on pupil records, and that this information is available to the child's teachers and is forwarded to any school to which the pupil moves.  Any details of Court orders must also be noted in the pupil's record.

If the school receives a request to change a child's surname, for example when parents divorce and/or a parent gets married, the school should ask for independent written evidence of the change (not just a letter from the parent requesting the change), and ensure that consent has been given by the other parent or by anyone else who has parental responsibility for the child.

The school has a legal duty to record the full name of every pupil in the admissions register.  This is generally considered to be the child's full legal name.  However if the school feels it would be detrimental to the child to refer to him by a different name, the school must act in the best interests of the child.  Different rules apply when the child is subject to a special guardianship order.

To access the full government guidance note 'Understanding and dealing with issues relating to parental responsibility: departmental advice for maintained schools, maintained nursery schools, academies, free schools, local authorities and dioceses' please click here.  

About the Author

Matthew heads the firm's Education Sector and also has extensive experience of both contentious and non-contentious employment work, in particular Employment Tribunal cases.

Matthew Smith
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