Parental Conflict and Separation: Navigating a School's Duties, Obligations and Risks

We regularly receive calls from school principals which begin with the same disclaimer: ‘I’ve got a tricky one for you.’ Whenever we hear that, we know from experience it is about separated parents.

Why do principals give that disclaimer for separated parents? We generally assume every call we take from a school principal involves a ‘tricky’ issue. Although our clients are welcome to call us for advice in relation to simple and straightforward matters, we generally expect that there is some level of complexity if principals call us. However, there is something about issues involving separated parents that cause principals to give that disclaimer. Is it because the law is different when separated parents are involved? Or are there other reasons?

The law generally does not change because parents are separated. Schools still owe the same duties to their students and have the same legal obligations and rights with respect to their students. For independent schools, even the enrolment contract is not affected by the parents’ separation. If the parents were jointly and severally liable for the school fees when they signed the contract, they remain jointly and severally liable after they separate. Even if there are court orders that say one parent is to pay the fees, the other parent remains liable to the school under the enrolment contract. The court orders do not affect a parent’s liability under the contract; they merely give a parent the right to bring a cross-claim against the other parent if the school commences proceedings against them.

In a similar way, schools owe every student a duty to take reasonable precautions to prevent harm to them. Schools owe this duty whether a student’s parents are separated or not. However, there is abundant research that shows that children are more vulnerable to harm when there is conflict in the home. Although a school’s duty may not change, the school may need to take additional precautions in relation to students who are dealing with parental conflict. This will at least involve greater vigilance in watching for warning signs of troubling or problematic behaviour.

Another reason why dealing with separated parents is ‘tricky’ is that schools often feel like they are caught in the middle of the parents’ dispute. All too often separated parents will give conflicting instructions to the school. In some cases, one parent may want to deny the other parent’s access to particular information about their child. In other cases, one parent may want the child to play rugby or go on the school ski trip and the other parent says it is too dangerous. How are schools meant to decide between the parents?

In the case of accessing information, it is important to consider whether one parent has parental responsibility, whether they have shared parental responsibility and whether there are any court orders dealing with access to information from the school. Independent schools may also want to consider which parent has signed the enrolment contract and whether the school has any contractual obligations to provide information. If the student is in high school, the school may need to consider the student’s wishes because it most likely involves their personal information. Schools should encourage the parents to sort it out between themselves. However, if the school has to make the decision, it should consider the situation carefully.

In relation to a student’s participation in potentially dangerous activities, if the parents have shared parental responsibility, the parents’ conflicting instructions carry equal legal weight. How can a school ‘break the tie’? It might be best to take a practical approach by looking at the potential consequences. If the school says the student cannot participate, one parent might be upset that the student will not be playing rugby or going skiing. However, if the school allows the student to participate and the student is injured, the school may find itself defending a negligence claim. We suggest that it is normally better to deal with an upset parent than with the legal system.

Although the law may not change when parents separate, dealing with issues can be more complicated when separated parents are involved. Schools may also need to take additional precautions to prevent harm to their students. It is unsurprising therefore that many principals find dealing with separated parents to be ‘tricky’.

If your school is dealing with a tricky matter involving parents of a student, please contact p%9A%D0%C7%DD%C0%9EU%86%B6%A0%90%D5q.