Monday 27 January 2014

Changing a child's school - bullying

Under the Family Law Act 1975 the Family Law Courts are empowered to make Orders in relation to "any aspect of the care, welfare and development of the child or any aspect of parental responsibility for the child" - decisions about the so-called 'specific issues' that come up in day-to-day parenting, but that after separation can be difficult to agree upon.
 
One example of 'specific issues' is which school a child is to attend.
 
The Court is asked to consider which of the schools selected by the parents is best for the child - usually based on the child's educational or extracurricular needs and the practicalities such as distance between parents homes and public transport options.
 
Most often the decision that the Court has to make is at the time a child is to commence school (primary or secondary) but sometimes it is the circumstances in which a child can change schools.
 
In the recent decision of Bardot & Benjamin [2013] the Court was asked to determine whether a child in Year 6 could change schools - due to bullying.
 
In this case the mother sought Orders to change the child's school from "W" to "A". The mother argued that the child was experiencing bullying at "W" school (particularly in the form of exclusion) and such bullying was systematic and impacting on the child’s physical and/or psychological welfare. The mother submitted that "W" School had failed to address these issues and that "A" School's philosophy, culture, amenities, opportunities and comprehensive bullying strategies made it the better choice.
 
The father opposed a change in schools and argued that the child had inherent vulnerabilities to bullying and that the "W" school had adequately dealt with the bullying and that "W" School was working with the child in relation to her vulnerabilities and was in the best position to mitigate them in the future. The father also argued that "A" School presented some practical difficulties for the child in terms of travel time.  
 
In considering the matter the Court of course went through the criteria contained in section 60CC of the Family Law Act and gave weight to the following:
  • Child's wishes: the child expressed a wish "over a prolonged period" to change schools - while due to the child's age she would be unlikely to be able to properly evaluate the respective merits of different school programs and although the mother's influence could be detected the child was a "comparatively intelligent and articulate child" capable of considering her own views in an objective manner.
  • Likely effect of any change: there was no evidence that a change in school would have a negative impact on the child's studies, indeed if the change of schools was to help alleviate some of the child’s environmental distress then academic performance should not suffer. 
  • Practical difficulties: distance was not a serious issue or impracticality - children often travel distances of more than an hour each day to attend school in the area. Additionally, and as conceded by the father the best interests of the child's overall emotional well being takes priority over considerations of distance.
  • Other factors: both schools included comprehensive definitions of bullying and incorporated anti-bullying material in their respective student planners, however, the "W" School's approach appeared to be more aspirational and stated in broad policy terms while the "A" School had a more specific policy which designates specific roles to those charged with investigating and resolving bullying complaints. Perhaps the most persuasive difference was that the "A" School's stated aim of promoting a "culture characterised by caring relationships and enhanced self-esteem" was better tailored to the child's needs.
  •  
The Court concluded that the child had experienced bullying at "W" School and that while the child was developing some skills and techniques for coping with bullying the potential risk to the child's future mental health of not changing schools was too great. As "A" School had a more organised and sensitive response to bullying, it would be in the child's best interest to change schools. 
 


No comments:

Post a Comment