Tags: Headteacher | Legal framework | School Governance | School Governor | School Leadership & Management | SEN – Special Educational Needs | SENCO

One of our pupils is in care and has a statement of SEN. Her parents disagree with the statement’s provisions and plan to appeal to the special educational needs and disability tribunal. Which takes precedence, SENDIST or the family court?

A. this question was considered in the recent case of X County Council v DW, PW, and SW (2005)(2 FLR 508). A 10-year-old boy suffered from autistic spectrum disorder and associated behavioural difficulties of a kind that suggested he needed special educational provision.

His parents disagreed, and thought him capable of coping with mainstream schooling. The family court made a care order in favour of the local authority, which was also the LEA and, as such, made a statement of special educational needs.

Part 4 of the statement specified a special school maintained by the LEA. The care plan, which the judge approved, provided for the boy to be educated at that school.

The local authority and the boy’s guardian expressed concern at what would happen if the parents appealed to SENDIST, and SENDIST exercised its powers in such a way as to conflict with the care plan. (SENDIST is an independent tribunal to which parents can appeal against decisions made by LEAs about a child’s education.)

The LEA and guardian argued that there was a potential for conflict between the family court on the one hand, and SENDIST on the other.

No compulsion on parents

As the judge pointed out, there is no compulsion on parents to accept the special educational provision specified in the statement.
They are free to make other ‘suitable arrangements’ for their child (s. 324 of the Education Act 1996). It is only if they do not that the LEA is under a duty to arrange the special educational provision.

Parental responsibility prevails

Deciding where a child should go to school is an aspect of parental responsibility and, where the court has made a care order, parental responsibility is shared with the local authority.

It is for the local authority and not for the parents to decide where a child in care should go to school.
This does not, however, prevent the parents of a child in care from exercising their right of appeal to SENDIST.

But the family court cannot dictate to SENDIST how it is to exercise its statutory jurisdiction in relation to a child who happens to be subject to a care order.

Separate functions

The functions of the family court and of SENDIST are separate and distinct. As far as the child’s education is concerned, the ultimate questions for both the family court and SENDIST are very similar — but different tests apply to the decision-making process:

  • SENDIST is regulated by the Education Act 1996
  • the family court has to apply the Children Act 1989 principle that the child’s welfare is paramount

However, given that the ultimate questions for both the family court and SENDIST are so similar, there is no reason to suppose that they will arrive at different conclusions.

The family court cannot dictate to SENDIST how it is to determine an appeal — but in practical terms SENDIST will have to take into account any order made, or views expressed, by the family court.

Should SENDIST fail to take into account any relevant order or judgment of the family court, its decision may be reviewed by the High Court.

What if court and tribunal disagree?

There could, in theory, be an impasse: the family court taking one view as to where and how the child should be educated and SENDIST taking another.

But such an impasse would be more theoretical than real because there is no compulsion on parents to accept the special educational provision specified in a statement of SEN even if it has been approved by SENDIST, provided they have made other ‘suitable arrangements’.

And the family court in this respect is in no worse position than a parent. If it can make other ‘suitable arrangements’ for the child’s education, i.e. find some other suitable school that is willing to accept the child as a pupil, then it is not obliged to agree that the child be sent to the school specified in the statement.

Michael Segal is a district judge in the Family Division of the High Court

Send legal problems to The Editor, Education Law Update, 67-71 Goswell Road, London EC1V 7EP or email [email protected]. We regret we can not enter into individual correspondence. While it is hoped the answers given here are helpful, they should not be relied on without seeking proper advice as to their application to your own circumstances.

This article first appeared in Education Law Update – Oct 2005

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