PARENTS are threatening legal action against the Government over a new law which takes their rights away to educate their disabled, autistic and neuro-divergent children as they see fit.
They have warned Education Secretary Bridget Phillipson and her Welsh counterpart, Anna Brychan, that they will bring a judicial review of the Children’s Wellbeing and Schools Act 2026 if their concerns are not heeded.
A formal Letter Before Claim – a precursor to legal action – told the Government that the new law is incompatible with the Human Rights Act 1998 and the sections of the European Convention on Human Rights which protect a person’s private and family life, home and correspondence without discrimination.
The parents fear local authorities can now interfere unnecessarily in family life and can override decisions they rightly make for their children.
Their solicitor, Michael Charles of Sinclairslaw, said: ‘This is not a challenge to safeguarding, nor to the principle that the state may intervene where a child is genuinely at risk of harm.
‘The issue is whether the legislation now goes significantly further by permitting the state, in certain circumstances, to override lawful parental educational decisions even where education may already be entirely suitable. In a democratic society governed by the rule of law, the courts have an important constitutional role in testing legislation where there is a properly arguable concern that fundamental rights and freedoms may be infringed.
‘I look forward to receiving the Government’s substantive responses and the assurances which the claimants consider necessary before decisions are taken as to whether proceedings should formally be issued and the matter pursued further before the courts.’
Labour’s flagship education reforms came into force in April, changing practice in such areas as safeguarding, school standards and cost of living relief. They established free breakfast clubs in every primary school, expanded free school meals, capped spending requirements for school uniforms, banned smartphones in schools, required minimum standards of education and training for teachers, and introduced new oversight of multi-academy trusts and school attendance registers in co-ordination with local authorities.
The law, however, has been criticised by TCW correspondents here, here and here because it facilitates the unprecedented state intrusion into family life. Under the new Act, parents may now require local authority consent before withdrawing a child from school. The legislation also introduces extensive information-sharing powers concerning children and families.
Judicial review is the legal mechanism by which the courts supervise the lawfulness of government action and legislation. The proposed claim from the parents does not ask the courts to decide educational policy but to determine whether the statutory scheme enacted by Parliament is compatible with fundamental rights of family life, disability equality, parental autonomy and informational privacy which are protected by other laws.
Existing law has long permitted the state to intervene where a child is genuinely at risk of harm or where education is unsuitable. The proposed challenge concerns whether the 2026 Act goes substantially further by permitting the State to override lawful parental educational decisions even where no harm has been established and education may already be entirely suitable.
The Letter Before Claim states that ‘the statutory scheme materially expands state supervisory power into the private family sphere through a combination of consent requirements, “best interests” override powers, safeguarding-linked restrictions, extensive information-sharing provisions, educational monitoring, and broad discretionary powers conferred upon local authorities.’
The challenge argues that the legislation now permits local authorities to override lawful parental educational decisions not because education is unsuitable or harm is established, but because the authority considers regular school attendance to be in the child’s ‘best interests’. The claimants contend that this fundamentally alters the historic constitutional balance within English and Welsh education law.
The proposed claim further argues that the legislation risks making the long-recognised parental right to provide suitable education otherwise than at school ‘largely theoretical’ for many disabled children.
The letter says: ‘The Government appears to reason from the fact that children in special schools tend to have greater needs to the proposition that their parents should be subject to enhanced state control before they can withdraw them from school. That is a generalisation. It is not an individualised assessment.’
The claimants further contend that the legislation risks embedding stereotypical assumptions concerning disability, neurodivergence and parental competence.
The challenge also raises substantial concerns regarding the legislation’s information-sharing architecture and the creation of long-term state-held profiles concerning vulnerable children and families.
‘The cumulative effect of sections 436C and 436F creates an exceptionally broad statutory framework for the collection, retention, integration and dissemination of sensitive personal information concerning disabled children, neurodivergent children, safeguarding histories, family circumstances, educational arrangements and protected characteristics,’ says the letter. ‘The legislation therefore risks normalising disproportionate state oversight into the private family sphere absent established wrongdoing.’
The claimants argue that the law may create a chilling effect upon families engaging with safeguarding systems or seeking help from public authorities. Their letter says: ‘Families may become deterred from reporting safeguarding concerns themselves, or raising concerns regarding schools or institutional failures or even seeking assistance from authorities, for fear that engagement with safeguarding systems may trigger enduring educational oversight.’
A public crowdfunding campaign supporting the proposed legal challenge has been established by Sarah Birrane. In a relatively short time it has raised more than £30,000 towards the proposed litigation, although organisers acknowledge that substantial further funding may still be required should proceedings formally progress through the courts. You can access the link here.
