Private vs public education: Resolving parental disputes

Parents very often have strong views on how their child should be educated – but with so many factors to consider, it’s not always possible for both parents to agree, especially in cases where they are now separated or divorced.

One such dispute we’ve seen arise is whether a child should attend private (or independent) school.

Here, we examine what happens when one parent supports the idea of private education and the other does not:

Parental responsibility and decision making: what does the law say?

In England and Wales, the default position is that both parents share equal parental responsibility, which means they are jointly responsible for making important decisions about their child’s upbringing.

This includes major matters such as:

• The child’s name
• Medical treatment
• Religion
• And importantly, education – including the type of school they attend

When both parents have parental responsibility, neither parent has an overriding say on matters such as private education – and so the law prohibits one parent from unilaterally deciding to enrol the child in a private school without the other’s consent.

What happens if an agreement isn’t possible?

When parents with joint responsibility are unable to reach a decision on their child’s school arrangements, there are several options available to help facilitate a mutually acceptable resolution:

Open communication with the other parent

As a starting point, we always encourage parents to try and resolve disputes through open and respectful communication.

Both parties should set aside time to talk – ideally in a neutral setting – and focus on the core question: ‘what is in the best interests of our child?’

For the best chance of a fruitful discussion, it can be helpful to:

• Share the reasons behind your position (e.g. academic standards, pastoral care or the specific needs of the child)
• Consider compromises (e.g. agreeing to a trial period or co-financing arrangements)
• Be open to listening without judgment

This approach may not resolve everything – but it often helps reduce hostility and clarify points of agreement and disagreement going forward.

Mediation

If discussions remain strained or unproductive, family mediation can enable parents to exchange concerns and opinions in a more structured and impartial environment.

Mediation is a voluntary process led by a trained, independent mediator who will facilitate conversation and help parents explore solutions. This can be particularly useful for:

• Promoting child-focused decision making
• Making the dispute less adversarial
• Reaching an agreement more quickly and cost-effectively than court proceedings
• Helping agreements to be formalised or be incorporated into a court order (if both parties agree)

Indeed, in most cases, parents will need to evidence an attempt at mediation before an application to court will be considered, unless an exemption applies (e.g. urgent cases or domestic abuse concerns).

Legal advice and negotiation

Should mediation be unsuccessful in providing a path forward, or if you’re unsure about your legal position, it’s advisable to seek expert legal advice.

A qualified and experienced Family Law solicitor will be able to:

• Advise on the strength of your case
• Engage with the other parent (or their solicitor) in negotiations
• Draft formal correspondence outlining your position
• Prepare for potential court proceedings

Having legal representation can help clarify your rights and responsibilities and could help broker a resolution without the need for a court hearing.

Court proceedings – Specific Issue Order

If all else fails, either parent may apply to the Family Court for a Specific Issue Order.

This order asks the court to determine a specific matter affecting the child’s upbringing – in this case, whether they should attend a private school.

At Price Slater Gawne, our expert team are able to assist you in proceeding with the court process.

What factors will the court take into account?

When a judge is asked to decide whether a child should attend private school, they will not simply decide based on which parent ‘wants it more’ or who can afford the fees.

Instead, as is typical for matters involving children, the welfare of the child will be the court’s primary concern – with decisions guided by the ‘welfare checklist’ set out in the Children Act.

This checklist covers a host of key considerations, including:

The child’s needs, wishes and impact of change

This comprises both educational concerns:

• Does the child have any special educational needs that would be better met by a private school?
• Would the private school offer better pastoral care, smaller class sizes or added support that is particularly beneficial?
• Is continuity of education a factor (for example, would switching schools be disruptive to their academic career)?

As well as social and emotional factors, which the courts will weigh against the potential benefits of moving to private education:

• Would their routine and friendships be significantly disrupted?
• How would travel arrangements be impacted?
• Would a private school bring with it (real or perceived) increased expectations or pressure to achieve?

If the child is of sufficient age and maturity, the court will also take their views into account where appropriate.

A child’s opinion won’t be the sole factor but can carry weight – especially for older children.

Financial feasibility

While the ability to pay for private education is relevant, it is not decisive.

If one parent proposes private schooling and is willing and able to fund it without placing undue strain on the family’s finances – or seeking a contribution from the other parent – the court may consider this more favourably.

However, if the proposed schooling would create a financial burden or require the non-agreeing parent to contribute against their will, the court may be more cautious to accept the new arrangement.

Parental capacity to meet the child’s needs

The court may assess whether each parent can support the child’s education – emotionally, practically and financially – and how their involvement would function under the proposed schooling arrangement.

Risk of conflict or harm

In situations where disagreement about schooling is symptomatic of a broader parental conflict, the court may consider whether the decision might escalate hostilities.

This is especially true where the child’s emotional wellbeing could be adversely affected as a result.

How we can help

If you’re currently facing a parental dispute over your child’s educational future and need advice or representation to find a resolution, our experienced Family Law team would be happy to help guide you through your options and help work towards a solution that serves your child’s best interests.

Please contact us on 03333 058 375 or by email to family@psg-law.co.uk for a confidential consultation on your specific needs.