Separated parents disagreeing over the school named in a child’s EHC plan

The legal issue

Where, following an education, health and care needs assessment, it is necessary for special educational provision to be made for a child or young person in accordance with an EHC plan, section 37 of the Children and Families Act 2014 requires the local authority to secure that a plan is prepared. Once a plan is in place, the authority is responsible for maintaining it unless it is lawfully ceased. The detailed statutory requirements for the content of an EHC plan are found principally in section 37(2)–(5) and the Special Educational Needs and Disability Regulations 2014. In practical terms, the plan records the child’s special educational needs, the outcomes sought, the special educational provision required, and specified health and social-care provision.

The school is named through a separate process. Children and Families Act 2014 s.38 governs the draft plan, and s.38(5) provides that the draft must not name a school or other institution or specify a type of school. The parent may ask for a particular school from the categories set out in s.38(3), which include a maintained school, a maintained nursery school, an Academy, an institution within the further education sector in England, a non-maintained special school and an institution approved by the Secretary of State under s.41. Regulation 13 of the Special Educational Needs and Disability Regulations 2014 requires the local authority to give the child’s parent, or the young person, at least 15 days beginning with service of the draft plan to make representations about it, request that a particular school or other institution be named, and require a meeting with a local-authority officer to discuss the draft. The authority must finalise and send the EHC plan as soon as practicable and, subject to the statutory exceptions, within 20 weeks of receiving the request for an EHC needs assessment.

Children and Families Act 2014 s.39 then requires the local authority to name the school asked for unless s.39(4) applies — that is, unless the school is unsuitable for the age, ability, aptitude or special educational needs of the child, or the child's attendance there would be incompatible with the provision of efficient education for others or the efficient use of resources. Where s.39(4) applies, the authority must instead name a school it considers appropriate or specify a type of institution.

All of that assumes one parental position. Where the parents are separated it may not exist. Children Act 1989 s.2(7) provides that where more than one person has parental responsibility for a child, each of them may act alone and without the other in meeting that responsibility — which means two parents can ask for two different schools within the same 15-day window, and neither can withdraw or override the other's request.

In a recent anonymised matter, both parents held parental responsibility and had reached an impasse during the EHC-plan process. The local authority had issued a draft plan, but the parents supported different specialist placements. One parent favoured a setting they considered more capable of delivering the provision described in the draft plan; the other preferred a different placement, placing particular weight on continuity, travel arrangements and the child’s existing support network. The local authority had not yet made its final placement decision, so the immediate issue was how the parents’ competing positions should be managed while the statutory consultation period remained open.

The law this rests on

• Children and Families Act 2014 s.37 — the duty to secure and maintain an EHC plan, and what the plan must specify
• Children and Families Act 2014 s.38 — the draft plan; the categories of school that may be asked for (s.38(3)); the draft must not name a school (s.38(5))
• Children and Families Act 2014 s.39 — the duty to name the school asked for unless s.39(4) applies
• Children and Families Act 2014 s.51 — appeals to the First-tier Tribunal, including against the school named in the plan
• Special Educational Needs and Disability Regulations 2014 reg.13 — timescales for EHC plans: at least 15 days on the draft plan, and 20 weeks to the finalised plan
• Children Act 1989 s.1(1) — the child's welfare is the court's paramount consideration
• Children Act 1989 s.1(2) — delay is likely to prejudice the child's welfare
• Children Act 1989 s.1(3) — the welfare checklist, applied by s.1(4) to a contested section 8 application
• Children Act 1989 s.1(5) — no order unless making it would be better for the child than making no order
• Children Act 1989 s.2(7) — where more than one person has parental responsibility, each may act alone
• Children Act 1989 s.8 — specific issue orders and prohibited steps orders defined
• Children Act 1989 s.9(5) — restrictions on specific issue and prohibited steps orders
• Children Act 1989 s.10(4), s.10(9) — who may apply for a section 8 order, and the leave test
• Children Act 1989 s.11(1), s.11(3), s.11(7) — timetabling, interim orders, and directions and conditions
• Children Act 1989 s.7 — welfare reports
• Family Procedure Rules 2010 Part 12 — children proceedings except parental order proceedings and adoption, placement and related proceedings

How we approached it

Separating the family and education issues

The central task was to separate the parental disagreement from the statutory EHC-plan decision. The family-law question was how parental responsibility should be exercised while the parents disagreed. The education-law question was whether the local authority’s proposed or final EHC-plan placement was lawful and appropriate under the Children and Families Act 2014.

Those questions may be connected, but they do not give either forum the power of the other. A family-court order may regulate parental conduct; it does not substitute the court’s choice of school for the local authority’s decision or the SEND Tribunal’s appellate jurisdiction.

The first dispute is with the local authority: what the plan says, and which school it names. That is an education law question. Children and Families Act 2014 s.51 provides for an appeal to the First-tier Tribunal, and s.51(2) lists the matters that may be appealed — including a decision not to secure an EHC needs assessment, a decision that special educational provision is not necessary, the content of the plan covering the child's needs, the provision and the school or other institution named, a decision not to reassess, a decision not to amend or replace a plan, and a decision to cease maintaining a plan. Section 51(3) sets out when an appeal about the content of a plan may be brought — when the plan is first finalised, and following an amendment or replacement. Mediation requirements under s.55 apply before most appeals. Only the Tribunal can change what the plan says.

The second dispute is between the parents: which position the family is to take. That is a family law question, and it is what Children Act 1989 s.8 calls a specific issue order — an order giving directions for the purpose of determining a specific question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child. Asking the local authority for a particular school, and deciding whether to appeal to the Tribunal, are exercises of parental responsibility, and where two parents holding it cannot agree, the family court can determine which position prevails.

A specific issue order cannot require a local authority to name a school. The local authority is not a party to family proceedings between two parents, and the family court's jurisdiction under s.8 is over the exercise of parental responsibility, not over the authority's statutory duties under Children and Families Act 2014 s.39. Children Act 1989 s.9(5) reinforces the point from the other direction, by preventing the court making a specific issue order in any way that is denied to the High Court in the exercise of its inherent jurisdiction with respect to children. A parent who brings a family application hoping to change the plan has brought the wrong application, and will have spent the Tribunal deadline doing it.

What the family court is actually being asked

Framed correctly, the specific issue order sought is one determining a question such as: which parent's request is to be put to the local authority; whether an appeal to the First-tier Tribunal is to be brought; which parent is to conduct that appeal; and what each parent is to do to enable it. That is a question about the exercise of parental responsibility, it is within s.8, and it is answerable.

Children Act 1989 s.11(7) then allows the order to carry directions about how it is to be carried into effect, conditions to be complied with by a named person, a specified period, and such incidental, supplemental or consequential provisions as the court thinks fit. In a SEND matter that is where the practical obligations go: who signs what, by when, who is the point of contact for the local authority and the school, and how reports, assessments and correspondence are shared between the two households. Information-sharing is usually the live grievance in these matters and it can be dealt with here.

Who can apply

Children Act 1989 s.10(4) entitles a parent, guardian or special guardian, and a person named in a child arrangements order as a person with whom the child is to live, to apply for a s.8 order without permission. Anyone else needs the leave of the court, and s.10(9) requires the court to have regard in particular to the nature of the proposed application, the applicant's connection with the child, and any risk of the proposed application disrupting the child's life to such an extent that the child would be harmed by it.

What the family court weighs, and in what order

First, Children Act 1989 s.1(1): the child's welfare is the court's paramount consideration in determining any question with respect to the upbringing of a child.

Second, the welfare checklist in Children Act 1989 s.1(3), applied by s.1(4) where the making of a s.8 order is opposed. In a SEND placement dispute the checklist works hard, and two paragraphs in particular:

(a) the ascertainable wishes and feelings of the child concerned, considered in the light of the child's age and understanding. The statute's qualification matters here more than anywhere. A child with significant special educational needs has wishes and feelings, and the obligation is to ascertain them and weigh them in the light of that child's understanding — not to assume there is nothing to find out.

(b) the child's physical, emotional and educational needs. Educational needs are named in the statute, and in a SEND matter the plan itself, prepared under Children and Families Act 2014 s.37(2), is the fullest available statement of what they are. The court is not re-assessing need; it is deciding which parent's position better serves needs that have already been assessed.

(c) the likely effect on the child of any change in circumstances — for a child who relies on routine, familiar staff and an established setting, this can be the decisive paragraph.

(d) the child's age, sex, background and any characteristics of the child which the court considers relevant.

(e) any harm which the child has suffered or is at risk of suffering, which in this context includes the harm of a placement that cannot meet the child's needs and the harm of a period out of education altogether.

(f) how capable each of the child's parents is of meeting the child's needs, including who has been managing the EHC process, attending the reviews and doing the work.

(g) the range of powers available to the court under the Act.

Third, delay, which in a SEND matter is not a general principle but a set of hard dates. Children Act 1989 s.1(2) states that any delay in determining a question about a child's upbringing is likely to prejudice the child's welfare, and s.11(1) requires the court to draw up a timetable with a view to determining the question without delay. Alongside that sit the education deadlines: at least 15 days from service of the draft plan to comment and ask for a school under regulation 13 of the Special Educational Needs and Disability Regulations 2014, the 20-week outer limit for the finalised plan in the same regulation, and the time limit for an appeal to the First-tier Tribunal. A family court application will not be resolved inside a 15-day window. That has a practical consequence which should be said to any parent in this position at the first meeting: protect the education deadline first, by making the request or lodging the appeal within time, and use the family application to resolve the disagreement about the position being taken. Missing the Tribunal deadline while waiting for the family court is the single worst outcome available in this category, and it is avoidable.

Fourth, Children Act 1989 s.1(5): the court shall not make an order unless it considers that doing so would be better for the child than making no order at all.

Procedure

The family proceedings are governed by Part 12 of the Family Procedure Rules 2010, with the route set out in Practice Direction 12B, the Child Arrangements Programme: a Mediation Information and Assessment Meeting before most applications unless an exemption applies, Cafcass safeguarding checks reported in a safeguarding letter at 17 working days, and a First Hearing Dispute Resolution Appointment at around week five to six after the application. Where the court needs an independent view, Children Act 1989 s.7 allows it to ask a Cafcass officer, or a local authority, to report on such matters relating to the welfare of the child as are required to be dealt with in the report.

The Tribunal appeal runs on its own timetable, in parallel and independently. Neither forum waits for the other.

What makes the difference

The EHC plan itself is the strongest evidence in a family application of this kind, because it is an independent, statutory statement of the child's needs and of the provision required, prepared under Children and Families Act 2014 s.37(2). A parent whose proposed school is measured against the provision specified in the plan is arguing from the document; a parent arguing from preference is not.

The second thing that makes a difference is candour about the s.39(4) conditions. A parent asking for a school the local authority can lawfully refuse under s.39(4) — because it is unsuitable for the child's age, ability, aptitude or special educational needs, or because attendance would be incompatible with the efficient education of others or the efficient use of resources — needs to know that before the family court is asked to endorse the request. There is little value in an order determining that a request should be made if the request cannot succeed.

The third is separating the child's interests from the argument between the parents. These matters are frequently the continuation of an older dispute by other means, and the professionals around the child can see it. A position built on the plan and on what the child needs reads differently from one built on the other parent's conduct.

The outcome

The orders and outcomes available here sit in two separate systems, and it is worth setting out both.

In the family court, under Children Act 1989 s.8:

A specific issue order determining which parent's request is to be put to the local authority, or determining that an appeal to the First-tier Tribunal is to be brought, or determining which parent is to conduct it.

A specific issue order dealing with the process rather than the destination — who is the point of contact for the local authority and the school, who attends reviews and meetings, and what information each parent must provide to the other and by when.

Directions and conditions attached under Children Act 1989 s.11(7): directions about how the order is to be carried into effect, conditions to be complied with by a named person, a specified duration, and incidental, supplemental or consequential provisions. Information sharing between two households is ordinarily dealt with here.

A prohibited steps order under Children Act 1989 s.8, preventing a specified step being taken without the consent of the court, subject to the restriction in s.9(5).

An interim order under Children Act 1989 s.11(3), where a decision cannot wait for the final hearing.

No order at all under Children Act 1989 s.1(5), where the parents reach agreement.

In the education system, and not available from the family court at all:

The local authority naming the school asked for, which Children and Families Act 2014 s.39 requires unless s.39(4) applies; or the authority naming a school it considers appropriate, or specifying a type of institution, where it does.

A determination by the First-tier Tribunal on an appeal under Children and Families Act 2014 s.51, on any of the matters listed in s.51(2) — including the school or other institution named in the plan.

The boundary is fixed and it governs the whole of this category: a specific issue order cannot require a local authority to name a school. The family court decides which position the parents take; only the local authority, or the Tribunal on an appeal under s.51, decides what the plan says. Which order the family court makes is governed by Children Act 1989 s.1(1), the paramountcy of the child's welfare, applied through the welfare checklist in s.1(3) and subject to s.1(2) and s.1(5).

The family-court issue was resolved by agreement without the court being asked to determine the school named in the EHC plan. The parents put their respective views and supporting material before the local authority within the relevant education timetable, with arrangements put in place for information to be shared and for future EHC-plan communications to be handled more consistently. The local authority then made its placement decision through the EHC-plan process.
This was not a result that could have been guaranteed. Its value was procedural: the education deadline was protected, the dispute between the parents was kept within the family-court framework, and the placement decision remained with the statutory decision-maker.

Outcomes of this kind turn entirely on the evidence in the individual case. Nothing here is a prediction or a promise about any other case.

What to take from this

• Two parents can make two different requests. Children Act 1989 s.2(7) allows each holder of parental responsibility to act alone in meeting that responsibility, and neither can cancel the other's request during the period regulation 13 of the Special Educational Needs and Disability Regulations 2014 allows for comments on a draft plan.
• The family court cannot change the plan. A specific issue order under Children Act 1989 s.8 operates on the exercise of parental responsibility; the school named in the plan is decided by the local authority under Children and Families Act 2014 s.39 and, on appeal, by the First-tier Tribunal under s.51.
• Protect the education deadline first. Regulation 13 of the Special Educational Needs and Disability Regulations 2014 gives at least 15 days from service of the draft plan to ask for a school, and requires the finalised plan within 20 weeks of the request for an assessment. No family court application will be decided inside that window, so make the request or lodge the appeal in time and use the family application to settle the disagreement.
• Know what the local authority can lawfully refuse. Children and Families Act 2014 s.39 requires the authority to name the school asked for unless s.39(4) applies — the school being unsuitable for the child's age, ability, aptitude or special educational needs, or attendance being incompatible with the efficient education of others or the efficient use of resources.
• The plan is the best evidence a parent has. Prepared under Children and Families Act 2014 s.37(2), it is an independent statutory statement of the child's needs and required provision, and it maps directly onto the educational needs the court must weigh under Children Act 1989 s.1(3)(b).
• A child with significant needs still has wishes and feelings. Children Act 1989 s.1(3)(a) requires the court to have regard to the child's ascertainable wishes and feelings in the light of their age and understanding — an instruction to find out, not to assume.
• Fix the information problem in the order itself. Children Act 1989 s.11(7) allows directions, conditions on a named person and consequential provisions covering who is the contact for the local authority and the school, who attends reviews and what each parent must share — which is what stops the same dispute recurring at every annual review.