CBM v MBS

I am concerned with D, who is ten. He is about to start his last year of primary school.

D’s parents are separated. His father left the family home. The mother issued an application for child arrangements order following conduct, subsequently admitted to by the father. He later pleaded guilty to a criminal offence. A non-molestation order is in place.

The parties subsequently agreed the substantive child arrangements, and a consent order was made by HHJ Gibbons on 5 May 2026. The order provides that D will live with his mother and spend time with his father every other weekend, and for longer periods of time in the school holidays. The order provides that contact is supervised by paternal grandparents, with whom the father is currently living, but it is envisaged that it may progress to unsupervised contact, once the father has completed domestic abuse work with an independent social worker.

The only outstanding issue between the parties is which secondary school D should go to in September 2027. It is this issue which has been listed for me to determine.

The mother’s preferred option is for D to go to a small independent school.

The father proposes a state secondary school.

Both parents agree that D has additional educational needs, that he finds change and transition difficult, and would benefit from practical and supportive learning. Both schools can provide SEND support.

The dispute is not whether one school is generally ‘better’ than the other, or whether private or state school provision is better, but which school is the better fit for D’s particular needs.

In my conclusions I have regard for the welfare checklist as set out in Section 1(3) of the Children Act 1989. In reaching my decision D’s welfare is my paramount consideration and his welfare has been at the forefront of my mind throughout this hearing.

I have had regard to the contents of the bundle, focusing on the witness statements of the parties relevant to this application, the report of the independent social worker, and information about each of the schools. I have been assisted by the written and oral submissions of counsel, Mr Allen for the mother, Ms Henty for the father.

I now turn to consider the welfare checklist.

the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);

D has not expressed strong views about either school, but the independent social worker recorded that when she met him on 21 April 2026 and asked him which school he might go to, he said, ‘Probably the state school or the independent school. My friends are mostly going to the state school.’ The independent social worker also noted that during her observation of D with his mother, ‘D talked animatedly about his friends and which secondary schools they will be going to. D told me clearly that he would be going to the same school as his best friend, R. He said that where his friends go to school is very important to him.’

In her witness statement the mother said that since then, she has taken D to see both schools. She says when she took D to the state school he found it intimidating, found the layout confusing, stayed close to her, would not walk through doors ahead of her, and made clear to her when they left that he would not be going to that school. By contrast, she said that at the independent school he ‘positively glowed’, speaking to every member of staff in school, and was excited to see all the classrooms and the grounds which include a river.

I am cautious about the weight I give to this evidence, which was not explored in cross-examination. Initial impressions of a ten year old at an open day may be instructive, but cannot override decision making of adults, which must take into account a number of factors. Knowing what we do about D, it would be surprising if he did not feel somewhat overwhelmed by the larger and busier environment of the state school. His responses will serve to highlight areas where he might need additional support if he were to go to that school, but I do not take them as an indication that the school should be ruled out of consideration.

his physical, emotional and educational needs;

D is a bright, curious and imaginative child who enjoys practical and hands-on learning. He is working below age-related expectations across most subjects and particularly struggles with maths. He receives additional support in most subjects. He does not have a formal EHCP, but his primary school has carried out an assessment that identifies his neurodevelopmental profile. This identifies difficulties with processing and retaining information, following multi-step instructions, organising and remembering things, sustaining attention and filtering distractions, understanding patterns and mathematical concepts, and communication and social understanding, particularly in larger groups, which he can find overwhelming.

D has needed extra support from adults at school to manage these difficulties, and also to help him navigate friendships, which he can find tricky.

He has some difficulties with his fine motor skills, struggling with handwriting, buttons or using scissors. He has some heightened sensitivity to clothing, labels and textures, and some smells.

He would do well in an environment where things are predictable and there is a clear routine in place, where there are few distractions, strong pastoral support, and where he can have the benefit of adult attention – both supervision and guidance. He finds change difficult to manage and is likely to need careful support during his transition to secondary school.

In recent years D has had to contend with his parents’ separation, the loss of the life he knew when they all lived together in the same household, and an adjustment to now being parented by them separately, and his time with his father supervised by his grandparents. The parents’ different perspectives about his welfare needs are evident from their statements, but to their credit it does appear to me from the evidence that they have both done their best to protect him from their dispute.

Nonetheless, D will no doubt benefit once the financial remedies proceedings have concluded next month, the Children Act proceedings are finally resolved, and there will be clarity around the arrangements for where he is going to school. The more he can be protected from any ongoing conflict the better it will be for his emotional stability and security.

the likely effect on him of any change in his circumstances;

D’s time at primary school will come to an end next summer, so in common with all his classmates, change is inevitable.

His current primary school is small and has a total of one hundred pupils and a class size of sixteen.

The independent school is a very small secondary school, with just two hundred and fifty pupils. D would be starting in a year group of around thirty, likely split into two classes, so similar to what he has experienced at primary school.

The state school is significantly larger, with nine hundred pupils. There would be around one hundred and fifty pupils going into year seven with D, and class size would be double what he is used to, around thirty. He is likely to be in different classes for different subjects with a larger number of teachers to become accustomed to.

D would not be going to the independent school with any of his school friends, although his mother says that he already knows some children at the independent school, and has no difficulty making new friends. She considers it more likely that he will make friends in an environment which more closely mirrors the school environment he has been used to, likely to be less overwhelming and with fewer distractions than a larger school, and with a higher level of adult attention and support, given the smaller class sizes.

If D were to go to the state school, he would likely be going with about half his current class (the other half would go to another school), including his best friend, R. With one hundred and fifty pupils in each year, and with pupils likely streamed according to ability or in different teaching groups depending on subject choices and timetabling, he may well find that he sees much less of his primary school friends than he does now. However, they would be travelling to and from school together from where they live now.

It is just under fifteen minutes to drive from the town where D lives to the state school. As well as existing classmates from primary school, the new friends he met there would likely live in a radius around the state school which includes where he lives now, and is not far from where his grandparents and father live in another town.

By contrast, the journey to the independent school is a half hour car journey from where D lives with his mother. The new friends he makes will likely live in a radius around another town, some of them closer to the town where D lives, but others further away, and a significant distance away from where his mother lives, and even further from his grandparents’ house.

The length of the school day is more or less the same for both schools. The school day in the state school finishes at 3.00 p.m. and the school bus leaves at 3.10 p.m. and returns at 3.40 p.m. At the independent school the school day finishes at 3.35 p.m. but there are opportunities to stay for after school activities and take a late bus home which would bring D home for 5.15 p.m.

his age, sex, background and any characteristics of his which the court considers relevant;

There are no particular factors of relevance beyond what has already been considered.

any harm which he has suffered or is at risk of suffering;

D’s parents are committed to supporting him wherever he goes to school. While each parent has a view that one school is better suited to D’s needs than the other, both fairly acknowledge the positives about the other’s choice and do not suggest that D will be at risk of harm if he ends up in their second preference.

The mother makes the application on the basis that she will solely fund all the school fees and extras. Current fees for the next academic year are just under £20,000, predicted to rise to £23,194 by year eleven. If D is to stay in the private sector for sixth form they will likely increase again for the last two years. In addition there will be associated costs; uniform, the school bus, and school trips.

The mother says that she will meet these costs from her income and from savings that she has already started to accrue by forgoing pension contributions. In addition, Mr Allen submits:

The mother earns well, but the school fees and extras would represent a significant proportion of her net income. She does not have any other source of income or savings fund.

It may be that the mother considers it a reasonable trade off to live in a smaller house than might meet hers and D’s assessed need to make her commitment to paying the school fees easier to meet. But it is likely that the father will consider that reducing the assets of the marriage to pay school fees he that regards as unnecessary, is unnecessary and unfair on him.

The decisions about financial remedies are for another day and another judge.

Both parents fairly accept that there are both positives and negatives of each choice. I consider it likely that each will be able to accept whatever decision is made and support D in his education in either school.

However, there is in my assessment a risk that if the decision is the independent school, the pressure of the school fees, borne by one parent and not the other, the potential consequences that may have had on the outcome of the financial remedies proceedings, may over time develop into a continuing source of tension or resentment between the parents. This could impact D negatively. There is a risk that when D comes to understand that only his mother is paying the fees, he may feel that is not fair, or not necessary, or not worth the compromises or sacrifices that may come with the commitment she has made. He is likely to become aware that this is a matter about which his parents did not agree, and however positive his father is about it, he will know that it is not a decision jointly made. Going to school every day could turn into an act of living out his parents’ conflict.

These risks may never materialise, or they may materialise whichever school D goes to. However, I do consider that there is a greater risk of some emotional harm to D in the scenario that his mother pays all the fees for the reasons given.

The independent school is extremely small. The recent report of the Independent Schools Inspectorate is very positive and there are clearly significant advantages. However, its small size does also present some risks. I consider that I must take judicial notice that the changes to rules about schools in the independent sector having charitable status and the consequential impact on VAT has led to a number of independent schools closing. There is a risk of harm to D if the independent school were to meet that fate in the next few years.

Further, while there is an excellent SEND provision at the independent school the department will no doubt be small. The state school will likely have a larger SEND team who will cover one another for absences.

how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

D is much loved by both his parents. The last few years have been extremely challenging, but they must take credit for what they have achieved. They have worked hard to ensure that D’s needs are met. The mother has given D stability of care, and is to be credited for acknowledging the importance to D of having his father in his life, despite the conduct for which he received a criminal sanction. The father is to be credited for taking responsibility for his actions and for his commitment to work to change his behaviour.

D’s paternal grandparents have played a crucial role in this process and will continue to be very important people in D’s life. While parents and grandparents tend to spend far less time at a child’s secondary school compared to primary school, it will on balance be helpful for D to go to school which is relatively close to where they live. The state school is significantly closer than the independent school.

the range of powers available to the court under this Act in the proceedings in question.

I remind myself that whatever orders are being sought the court can make a whole range of Section 8 Children Act Orders or indeed no order at all if the court considers that to be appropriate. It is clear in this case that an order is required.

Having regard to all the evidence I have read, the submissions, and the welfare checklist, I have reached the conclusion that D should go to school at the state school.

There are advantages and disadvantages of each option, but on balance I have determined that the state school best meets D’s welfare interest.

D does have a set of particular needs, but he does not have an EHCP, and his difficulties fall well within mainstream SEND provision, which can be provided by both schools. He does not need to attend a specialist school to meet his educational, social, physical and emotional needs;

Although at the outset of his secondary school career he would undoubtedly benefit from an environment where he finds himself in a small class with strong pastoral support which more closely matches his experience in primary school, in my judgement, the evidence does not establish that D’s difficulties are such that he requires the level of containment that the small-scale of the independent school offers throughout his secondary school career, or that he would be unable to adjust to the larger and busier environment at the state school. I find that he would be able to do so with appropriate support, and that the state school can offer that support to him.

There are distinct advantages for D in moving to a small secondary school from his existing primary school. He will receive a lot of support in the transition and is likely to find it a nurturing environment that he adjusts to more easily in the short term than he might at the state school. However, I have his whole school career in mind. Although the step up to the state school may present more of an initial challenge, D will be well supported by his mother, his father and by the school, and on balance, looking at the next five years of his school career, I consider that the state school is the better option for the following reasons:

For these reasons I have concluded that D’s welfare interests throughout the next five years of his education are best met by attending the state school.

I am not sure of the extent to which D is aware of this application. If requested, I would be happy to write him a letter to explain in language accessible to him my decision and the reasons for it.

Otherwise, I simply wish him the best of luck for his last year of primary school and the transition to secondary school, and his parents the best for the future.