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In New Zealand, certain key decisions about a child’s upbringing, such as those relating to education, medical treatment, religion, and where a child lives, must be made jointly by all guardians. These are known as guardianship decisions, and they require consultation and agreement between all guardians. Generally, guardians are the child’s parents.
One area where this is often misunderstood is in relation to schooling.
Joint Decision-Making on Education
It is a common misconception that one parent can decide where a child goes to school without the consent of the other. These types of decisions, made without consultation, are referred to as unilateral decisions.
In reality, both parents must consult and agree on all major educational matters, including which school a child will attend and whether to change schools in the future.
As children grow and approach school age, it is important for parents to begin these conversations early. If agreement cannot be reached, the Family Court may need to step in and make the decision for the parties.
Unfortunately, it is becoming increasingly common for disputes over schooling to arise at the last minute, often when a child is approaching the legal enrolment age of six, resulting in urgent applications to the court.
Disputes of this nature can also arise later, for example:
• When one parent relocates and wishes to enrol the child in a school closer to their new home;
• When parents disagree on public vs private education; or
• When a child expresses a desire to change schools, and only one parent supports the move.
Regardless of the situation, guardianship decisions must not be made without the other guardian’s consent.
The Court's Approach to Unilateral Decisions
The Family Court takes guardianship matters seriously and expects parents to uphold their legal obligations. Where one parent makes a schooling decision without the other’s consent, the court has the power to intervene. This may include making orders to:
• Prevent the child from attending the new school while the matter is determined; or
• Require the child to return to their previous school if the move was made without agreement.
The court's primary focus is always the child’s welfare and best interests. Unilateral decisions that disregard the other guardian’s rights are generally not looked upon favourably.
What if You Can’t Reach Agreement?
If you and the other guardian cannot agree on schooling, there are steps you can take before turning to the court:
1. Family Dispute Resolution (FDR)
FDR is a confidential mediation service designed to help guardians resolve disputes outside of court. In many cases, it is publicly funded, meaning it can be accessed for free through approved providers. A trained mediator facilitates the discussion and helps the parties work towards a mutually acceptable outcome.
If an agreement is reached, it can be recorded in writing. If not, the mediator will issue a certificate confirming that agreement was not possible.
2. Court Proceedings
If FDR is unsuccessful (or considered inappropriate in the circumstances), or the parents cannot otherwise come to an agreement, a court application may be filed. The judge will hear both parties’ positions and make a decision based on what is in the child’s best interests.
Once a court order is made, it is legally binding. Failing to comply with an order may result in serious consequences, including a warrant to enforce the order, finding of contempt of court or other sanctions.
Looking Ahead
Disputes over education can be emotionally charged and stressful for everyone involved, especially the children. That’s why early communication, cooperation, and forward planning are essential.
By understanding your obligations as a guardian and acting proactively, you can help avoid the emotional and financial toll of court proceedings, while ensuring your child’s best interests remain front and centre.
If you’re currently facing a guardianship dispute and are unsure of your options, speak to a member of our family law team today.
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