The prevailing voice in choice in schooling: The balancing rights of parents, children and the courts

In this paper, drawing on international conventions, national and state statute law and case law we consider rights of parents and children to determine schooling choice in Australia and the United States of America (US). In both countries, parents have been given clear rights to direct the education of their children, but within limitations. We examine also children’s rights to educational choice and whether children’s rights may curtail the rights of parents in some circumstances. Finally, we examine the involvement of courts in curtailing rights of parents to determine schooling for their children, within the context of family law in family breakdown. The best interests of the child are often used as the framing consideration in such decisions. We also examine the factors the courts consider to determine the best interests of the child, and the extent to which, in matters educational, quality of schooling arises an issue. Overall, we conclude that while a focus on children’s best interests is endorsed in both countries, in education, as in many areas, children have limited opportunities to contribute to decisions about their future.