Schools: Parental Decision Making and Access to Pupil Records

Definition of a ‘Parent’

Parents may be recognised differently under education law than under family law.

For the purposes of education law, section 576 of the Education Act 1996 defines a 'parent' as:

• all natural (biological) parents, whether they are married or not;
• any person who, although not a natural parent, has parental responsibility for a child or young person (this could be a step-parent, guardian or other relative);
• any person who, although not a natural parent, has care of a child or young person.

A person has care of a child or young person if they are the person with whom the child lives and who looks after the child, irrespective of what their relationship is with the child.

In family law ‘parental responsibility’ means all the rights, duties, powers, responsibilities and authority which by law a parent has in relation to the child. People other than a child’s natural parents can acquire parental responsibility, for example through being appointed a guardian or adopting a child. More than one person can hold and exercise parental responsibility for a child.

Access to a Child’s Educational Information

Education law gives parents the right to information about their child’s education. However, these rights differ depending on the type of school the child attends. In some cases a parent may be able to access information about their child’s education through a request under the Data Protection Act 1998.

LEA-Maintained Schools

The Education (Pupil Information) (England) Regulations 2005 (SI 2005/1437) give parents of pupils at Local Education Authority (LEA) maintained schools the right to access their child's educational records. Educational records may include information such as the records of the pupil’s academic achievements as well as correspondence from teachers, local education authority employees and educational psychologists. Parents have a right to access their child's educational record, even if their child does not wish them to access it. This applies until the child reaches the age of 18.

Schools do, however, have the right to refuse a parent’s request for information in some circumstances; for example, where the information might cause serious harm to the physical or mental health of the pupil or another individual.

The school must make a pupil's educational record available for inspection or provide a copy of the record within 15 school days of a parent's written request. The school cannot charge to make the record available for inspection. Any charge for copying the educational record must not exceed the cost of supply.

Independent Schools (Including Academies and Free Schools)

The Education (Pupil Information) (England) Regulations 2005 do not apply to non-maintained schools (e.g. academies, free schools and independent schools).

However, the Education (Independent School Standards) Regulations 2014, which came into force on 5 January 2015, set out certain minimum standards that all independent schools (including academies and free schools) must meet. The standards on information provision require that an annual written report of each registered pupil’s progress and attainment in the main subject areas taught is provided to the parents of that registered pupil.

The Data Protection Act 1998

Pupils attending any type of school have a right of access under the Data Protection Act 1998 to their own information. This is known as the right of subject access, and it covers all personal data held about the data subject (ie. the information is not limited to the child’s educational record). When a child cannot act for themselves, or the child gives permission, parents can make a subject access request (SAR) on their behalf. As a general guideline, if the child is aged 12 and over the school is likely to obtain the child’s consent before disclosing their personal data to a parent.

The Information Commissioner’s Office (ICO) Subject Access Code of Practice (2014) provides guidance on releasing information held about pupils by schools, including what information it might be appropriate to withhold and factors to take into account when considering whether information should be provided to the child or the parent.

A SAR must be made in writing. If a SAR is made for information containing, in whole or in part, a pupil’s educational record, a response must be provided within 15 school days. The Code of Practice sets out the maximum amount the school may charge. If the SAR does not relate to any information that forms part of the educational record, then a 40 day time limit for responding applies. The maximum fee for dealing with the request is £10.

Information Commissioner’s Office helpline

The ICO helpline can provide advice on requesting information under the Data Protection Act 1998: 0303 123 1113 (local rate) or 01625 545 745 (national rate), Monday to Friday, 9am to 5pm.

Involvement in Decisions about a Child’s Education

The Department for Education (DfE) has issued advice on Understanding and dealing with issues relating to parental responsibility (January 2016), to help schools understand their obligations and duties in relation to the rights and responsibilities of parents.

The advice states that schools must treat parents (as defined under education law) equally, unless there is a Court order limiting an individual's exercise of parental responsibility. All parents have the right to participate in decisions about their child’s education. For example:

• to receive information, e.g. pupil reports;
• to participate in statutory activities; e.g. vote in elections for parent governors;
• to be asked to give consent; e.g. to the child taking part in school trips;
• to be informed about meetings involving the child; e.g. a governors' meeting on the child's exclusion.

In addition to these rights, all parents have legal obligations; for example: to ensure that a child of compulsory school age receives a suitable full-time education.

Disagreements about a Child’s Education

If parents cannot agree on decisions about a child’s education, they might want to seek independent legal advice about obtaining a Court order (e.g. a prohibited steps order or a specific issue order) setting out exactly what decisions each parent can make in respect of the child.

The Commons Library Briefing Paper Legal help: where to go and how to pay (CBP03207) provides information about where to seek legal help and advice.