School choice can be a bone of contention for divorced parents
When a couple with children divorces, their relationship does not end. They must continue to communicate and share responsibility for their children’s care and upbringing. And that includes school selection. In some locations, the choice of school is obvious. In a rural area there may not be multiple educational institutions within an accessible distance. But in metropolitan areas like Johannesburg and Cape Town, there is a wide choice of schools in both the government and private sector. Choosing a school for a child can often be a controversial subject, even for happily married couples. Families may have longstanding relationships with schools that lead to certain expectations when the next generation comes along. If mom and dad have different expectations, conflict can ensue. Divorce can exacerbate this conflict. What does the law say about school enrolment and parental decision-making?
Legislation
The South African Schools Act of 1996 requires all children between the ages of seven and 15 to attend school, although home schooling is also allowed, provided parents register their children for home schooling at the provincial department of education. All parents and guardians must ensure their children are registered to attend school. The Constitution states that everyone has the right to decide where and what their education should be.
Parental responsibilities and rights, children’s rights and protection, and principles and guidelines for care, contact and decision-making are covered by The Children’s Act 2005. The Act is premised on the best interests of the child, a principle that is paramount in all matters concerning the care, protection, and wellbeing of a child.
Divorced parents often have disputes about the care of their minor children. If there is a parenting plan in place, this should set out the major priorities regarding the children’s care, including school selection and attendance. Unfortunately, if the divorce takes place when the children are young and settled in primary school, or even before a child starts school, the parents may not think as far ahead as choosing the primary or secondary school. When the time comes to make this decision, old arguments often resurface.
Children’s Act
Section 18 of the Children’s Act gives parents the right to make decisions regarding the child’s care, wellbeing and development, including decisions about where the child lives, the child’s education, the child’s religious and cultural upbringing, and the child’s health care. This section calls for major decisions involving the child to be made jointly by the parties who hold parental responsibilities and rights. Sections 30 and 31 go into more detail about the need for co-holders of parental rights and responsibilities to consult each other and not make unilateral decisions.
Section 30(2) states; “when more than one person holds the same parental responsibilities and rights in respect of a child, each of the co-holders may act without the consent of the other co-holder when exercising those responsibilities and rights, except where this Act, any other law or an order of court provides otherwise.“
Section 31 goes on to clarify: “Before a person holding parental responsibilities and rights in respect of a child takes any decision contemplated in paragraph (b) involving the child, that person must give due consideration to any views and wishes expressed by the child, bearing in mind the child’s age, maturity and stage of development,” and “give due consideration to any views and wishes expressed by any co-holder of parental responsibilities and rights in respect of the child.” This includes any decision “…which is likely to significantly change, or to have an adverse effect on, the child’s living conditions, education, health, personal relations with a parent or family member or, generally, the child’s well-being.”
Therefore, while Section 18 broadly outlines the rights and responsibilities of parents, including the right to take decisions regarding the child’s care and wellbeing, Section 31 provides a more detailed process for how certain significant decisions must be made. It requires all individuals with guardianship over the child to consult with each other and ensure the child’s best interests are upheld in major life decisions. Section 31 provides the mechanism for dispute resolution and collaboration among parents or guardians for significant decisions affecting a child’s life, including the choice of school.
Unreasonably withheld consent
What happens when parents cannot agree? What can be done if one parent refuses consent and the situation is at an impasse? While parents may sometimes hold literal joint custody, with the child dividing their time equally between each parent’s home, it is more common for one parent to be the child’s primary caregiver. That parent may make decisions regarding the child’s upbringing as long as they act in the child’s best interests and the other holder of rights is consulted during the process. “Consult” does not necessarily mean “reach agreement with”. If one parent is the primary caregiver and the other parent unreasonably withholds consent for something in the child’s best interests, such as the choice of school, the primary caregiver may proceed on the basis of the child’s best interest.
Should the parent withholding consent challenge the decision, in any legal proceedings the standard applied by the court will be the “best interests of the child”, as outlined in Section 7 of the Act. If enrolling the child in a school is clearly in the child’s best interests, and withholding consent by the other parent is unreasonable and not in the child’s best interests, the court is likely to side with the primary caregiver. Naturally, the specific facts and circumstances of the case will influence the outcome, as each case is unique. However, the courts generally do not take the denial of such important aspects of a child’s upbringing lightly and will scrutinise the reasons for withholding consent.
Cape Town family lawyer can help
The Children’s Act ensure the interests of the child come first, but it is also critical to avoid a showdown between the parents, which can have a lasting impact on the mental health of the child. Cape Town divorce attorney Simon Dippenaar is an expert in family law and has a reputation for empathy and professionalism, with a personal touch. If you and your ex are struggling to reach agreement regarding your child’s schooling, or any other aspect of co-parenting, we can help you reach the best possible outcome for everyone. Call Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za.
Further reading:
Divorce Attorney Cape Town
http://divorceattorneycapetown.co.za/The information on this website is provided to assist the reader with a general understanding of the law. While we believe the information to be factually accurate, and have taken care in our preparation of these pages, these articles cannot and do not take individual circumstances into account and are not a substitute for personal legal advice. If you have a legal matter that concerns you, please consult a qualified attorney. Simon Dippenaar & Associates takes no responsibility for any action you may take as a result of reading the information contained herein (or the consequences thereof), in the absence of professional legal advice.