In recent years, home education has become a steadily growing trend in England and Wales, driven by a variety of factors ranging from dissatisfaction with mainstream schooling to particular lifestyle choices. When parents separate, however, the question of who holds responsibility for a child’s education becomes more nuanced and fraught with legal and emotional complexities. This is especially the case when one parent wishes to home educate a child, and the other does not support that decision.
Family law, education law, and the rights of the child intersect in important ways in such scenarios, making a clear understanding of each parent’s legal responsibilities critical. This article explores those responsibilities, the legal framework that governs home education post-separation, and how disputes may be handled when they arise.
Understanding the legal framework of home education
In England and Wales, the law allows parents to educate their children at home instead of sending them to school. This means that registration with a school is not compulsory as long as a suitable, full-time education is provided. The key legislation is found in Section 7 of the Education Act 1996, which states that the parent of every child of compulsory school age must cause them to receive efficient full-time education suitable to their age, ability and aptitude, and to any special educational needs they may have, either by regular attendance at school or otherwise.
Home education falls under the category of ‘education otherwise than at school’. There is no requirement for parents to have any teaching qualifications, nor do they need to follow the National Curriculum. That said, the education must still be efficient and suitable, as defined by law.
Local authorities have a duty to identify children in their area who are not receiving a suitable education. However, this duty does not give them the right to routinely inspect or regulate home education, and they must rely on parents to provide sufficient information voluntarily or when requested.
Parental responsibility: a shared legal duty
A central concept in family law is ‘parental responsibility’. As defined by the Children Act 1989, this refers to all the rights, duties, powers, responsibilities, and authority which by law a parent has in relation to the child and their property. In practical terms, this includes the right to make decisions about a child’s education.
When parents separate, both continue to hold parental responsibility if they had it prior to the separation. Mothers automatically have parental responsibility, and fathers acquire it either by being married to the mother at the time of the child’s birth, by being listed on the birth certificate after December 2003, or through a Parental Responsibility Agreement or court order.
This means that, post-separation, both parents legally retain the authority to make major decisions about their child’s life, including where and how the child is educated. In law, decisions such as changing the child’s mode of education from school to home learning require the agreement of both parents if both hold parental responsibility.
Consent and cooperation in home education decisions
One of the critical issues that arises when one parent seeks to home educate their child post-separation is whether both parents agree. The law does not explicitly state that both parents must consent to home education, but it is strongly implied by how parental responsibility works in practice.
Where a child is already enrolled in school, a parent wishing to withdraw them to educate them at home must notify the school in writing. The school is then required to remove the child from the register upon receiving such a notification, unless the child attends a special school and the withdrawal has not been agreed by the local authority.
However, if both parents share parental responsibility, unilateral withdrawal by one parent may lead to legal challenges. In many reported cases, Family Courts have intervened where one parent removed the child from school without the other’s consent. Generally, the courts view education choices as ‘major decisions’, which require joint input from both parents. If agreement cannot be reached, the matter may ultimately be settled through the family court.
Role of family courts in resolving educational disputes
When separated parents are unable to agree on whether to home educate a child, either may apply to the family court for a Specific Issue Order or a Prohibited Steps Order under section 8 of the Children Act 1989. A Specific Issue Order can be used to request the court’s decision on which type of education the child should receive. Conversely, a Prohibited Steps Order may be used to prevent one parent from removing the child from school or taking any similar action.
Courts apply the paramountcy principle which places the child’s welfare above all else. This means that the court will examine what is in the best interests of the child, based on a range of factors known as the ‘welfare checklist’, such as the child’s emotional needs, their age, any harm they may have suffered, and the capability of each parent to meet the child’s needs.
Courts are increasingly experienced in handling disputes over educational methods. While they acknowledge the legal right to home educate, they will focus on whether the proposed education is suitable and how it serves the child’s welfare. The ability of the parent to deliver a consistent and efficient education, the presence of any unmet special educational needs, or the child’s own views (depending on their age and maturity) may all be relevant.
Practical implications for home-educating parents
For a parent seeking to home educate post-separation, there are several practical and legal steps that should be considered. Firstly, it is important to clearly communicate with the other parent and seek written agreement about the intention to home educate. This avoids ambiguity and can prevent future disputes.
It may also be wise to involve the local authority at an early stage, as they can provide guidance and resources, although it is not a legal obligation to obtain their approval (unless the child is being withdrawn from a special school). Creating a written education philosophy or plan, while not compulsory, can also demonstrate the parents’ commitment to offering a suitable education.
If the local authority raises concerns about the suitability of the education, they may issue a School Attendance Order (SAO), which requires the parent to register the child at a specified school. Parents can challenge an SAO in the Magistrates’ Court, but the burden will be on them to show that the child is receiving efficient and suitable education at home.
Children with special educational needs
When children have identified special educational needs (SEN), the legal responsibilities around home education become more complex. If a child has an Education, Health and Care Plan (EHCP), and they are attending a special school funded by the local authority, consent is required from the local authority to withdraw the child from that setting. However, if a child with an EHCP is not in a special school and the parent wishes to home educate, they are permitted to do so, but the local authority still has duties to ensure the child’s educational needs are met.
Local authorities must review the EHCP at least annually, and part of this review will include assessing the suitability of any home education arrangements. Disputes may also arise between parents over whether home education is appropriate for a child with special needs, making early communication and potentially mediation even more critical.
Interplay between living arrangements and educational control
Post-separation, the issue of where the child lives most of the time can have a bearing on how disputes about home education play out. If the child primarily resides with the parent wishing to home educate, courts may give weight to the continuity of care and the practicality of facilitating education in a home setting.
However, the residential parent does not get automatic educational control. Education remains a matter subject to shared parental responsibility, and both parents’ views are important. If the non-resident parent is prepared to challenge the decision, and especially if there is a concern that it is not in the child’s best interests, the court may be asked to adjudicate, and each parent’s capacity to support the child academically will be scrutinised.
Children’s voices in educational decisions
The voice of the child is an essential aspect of both family and education law. In cases brought before the courts, children’s views are taken into account in line with their age and maturity. A fifteen-year-old’s preference to remain in mainstream education, for example, may carry considerable weight, whereas the views of a younger child may be subject to greater adult interpretation.
This is consistent with Article 12 of the United Nations Convention on the Rights of the Child, which affirms the right of children to express their views in all matters affecting them and to have those views given due weight. Consequently, when sorting out post-separation educational disputes, it is crucial for parents and the courts to meaningfully consider what the child wants, provided this is age-appropriate.
Mediation and alternative dispute resolution
Given the emotional and legal complexities of post-separation educational decisions, it is generally advisable to consider mediation before resorting to the courts. Family mediation offers a structured setting for both parents to express their concerns and work towards a mutually agreeable solution, often with less stress and cost than litigation.
Mediators do not impose decisions but facilitate dialogue and help parents understand the legal and practical consequences of their choices. Mediation can be especially useful when there are underlying emotional or relational issues clouding the educational discussion.
Moreover, under the Children and Families Act 2014, attending a Mediation Information and Assessment Meeting (MIAM) is now a precondition for most applications to the family court, unless exceptions apply.
Conclusion
Educating a child at home is a significant undertaking in any circumstance, but it becomes particularly complex following a parental separation. The landscape of legal responsibilities in England and Wales is built on the foundation of shared parental responsibility, where both parents must jointly make important decisions about their child’s upbringing, including education.
When those decisions are contested, as often happens with home education, courts, local authorities, and families must navigate a web of legal, practical, and emotional considerations. Above all, the child’s welfare remains the guiding star. For separated parents facing this journey, transparency, collaboration, and a deep focus on the child’s best interests are not just recommended; they are essential.