Enrolment is a legal process that most schools don’t think too much about. It is however a legal arrangement where the school is entering into a contract with the parents or guardians for the provision of services. At it’s heart, it is a purely contractual transaction, and so it is helpful to consider the basics of contract formation.
Essential relationship is that of contract
A contract is much more than an agreement between two people. There must be an offer made and acceptance of that offer. Both parties must intend to create a legally binding agreement, and pay a price (not necessarily money). The must have a legal capacity to enter a contract of their own free will, and proper understanding and consent of what is involved. Any duress, false statements, undue influence or unconscionable dealings could make a contract illegal and void.
By virtue of payment in the enrolment process there is generally a contractual relationship brought into existence between the school and the parents regarding the provision of education services to their child or children. Hence, all of these elements apply to an enrolment contract in much the same way as any other type of contract.
Offer and acceptance
A contract is formed when an offer by one party is accepted by the other party.
An offer must be distinguished from mere willingness to deal or negotiate. An offer need not be made to a specific person. It may be made to a person, a class of people, or to the whole world.
An offer is a definite promise to be bound, provided the terms of the offer are accepted. This means that there must be acceptance of precisely what has been offered.
A person can withdraw the offer that has been proposed before that offer is accepted. For withdrawal to be effective, the person who has proposed the offer must communicate to the other party that the offer has been withdrawn.
An offer is not to be confused with an “invitation to treat” which is a legal phrase that has existed for hundreds of years. An invitation to treat is like a Vase in a store with a price tag – in some circumstances, the Vase for sale may be an invitation for the purchaser to make an offer to purchase – or an invitation to treat. There are no terms of the contract of purchase stated, it is a mere statement of price.
There are excellent reasons to structure Applications for Enrolment as an Offer, and everything before that as an invitation to treat.
Acceptance occurs when the party answering the offer agrees to the offer by way of a statement or an act. Acceptance must be unequivocal and communicated to the offeror. A person has not accepted an offer merely because they have not expressly rejected it!
Intention to create legal relations
A contract does not exist simply because there is an agreement between people. The parties to the agreement must intend to enter into a legally binding agreement. This will rarely be stated explicitly but can usually be inferred from the circumstances in which the agreement was made. It would be highly unusual for an enrolment agreement not to evidence an intention for the parties to be legally bound by its terms.
Consideration is the price paid for the promise of the other party. The price must be something of value, although it does not have to be money. For example, it might be part money, and part volunteering special skills or experience. So long as “consideration” of some sort exists, the court will not question its adequacy, provided that it is of some value.
Not all people are completely free to enter into a valid contract. Some groups of people lack the legal ability to consent to contractual terms in one form or another, including:
- people who have a mental impairment;
- young people (minors); and
- some categories of prisoners.
By way of example, that means that Enrolment Contracts need to be signed by parents – not the students themselves, who are minors and not able to enter into contractual arrangements (except in specific circumstances).
The consent of each of the parties to a contract must be genuine. If one party is forced to sign a contract, the contract will not be binding.
Proper consent may be affected by any of the following matters:
- false statements;
- duress; and
- undue influence or unconscionability.
Terms of Contract
The “express” terms are terms that are clearly set out in the Contract, and are generally found in written form. Other terms can be implied in some circumstances where the contract doesn’t work unless those terms are implied. However, it is unusual to successfully argue that terms should be implied, and it is much safer to have the terms included in the Contract in the first place.
We recommend that schools have a review of their enrolment process and enrolment documents regularly – perhaps every few years unless a specific piece of legislation is enacted that requires it sooner. An example that forced many schools to review their enrolment documents was the Privacy Act amendments in 2014 (detailed later). Regular review of contracts ensures they reflect the current legislative requirements and best practice considerations from time to time.
In our experience it is sometimes difficult to identify the correct contracting parties to the contract of enrolment.
The College Contracting Party
In some cases the party named as the college or school should reflect the legal name of the college operating entity.
Parent Contracting Parties
Where the child to be enrolled comes from a home with two natural parents living together then, quite obviously, both parents would be party to the contract.
In circumstances where the parents have separated, it is important to ensure that the parent’s that have decision making responsibility are the parent/s who sign the enrolment contract. Documents that you should look at to make sure that the right people are parties to the contract include Court Orders made about parenting matters, or Parenting Plans.
It is unusual for a Court to order that 1 parent has sole parental responsibility for a child – but if they do, that is the ONLY parent that can make a decision about a major long term issue like education or health. In those circumstances, the school MUST have that parent as a party to the enrolment contract (and usually, the only party).
Where the Court makes an Order that the parents have equal shared parental responsibility, it is a requirement that decisions about major long term issues for the children must then be made JOINTLY. This means the parents should be sharing information with each other relevant to the decision, consulting with each other and making a genuine effort to agree.
Additionally, where there is an Order for Equal Shared Parental Responsibility, there can be no decision made about a major long term issue unless both parties agree. However, section 65 DAC(4) states that:
“To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly”
This means that it is not a responsibility of an organization to ensure that the decision is joint –an organisation is entitled to rely on a parent’s decision as communicated as if it is a joint decision of the parents.
Despite this, if one parent makes a decision that is not communicated to the other parent, or that the other parent expressly opposes, the organisation may be caught in the cross-fire. The best practice is that if the parents both communicate conflicting instructions in relation to a major long term issue, the College cannot pick a side – they must require the parents to resolve the dispute between them.
If there are no orders, or the orders do not make mention of parental responsibility, you must be especially cautious. If the Orders are old (pre July 2006) you may find that they use old terminology. If in doubt – get some advice about that.
If there are no Orders, or the Orders do not make mention of parental responsibility, then each parent has all of the responsibility to make decisions in relation to a child jointly and severally. Practically speaking, both parents can make decisions. It is possible for both parents, for example, to enroll a child in 2 different schools!
Other special circumstances sometimes arise – for example where a child has a guardian appointed by a Will, or where the child is in the care of the Department of Communities (Child Safety). Again, if in doubt, get some advice about it.
Copies of all documentation that establishes the right to make decisions for the child, including Wills, Court Orders, Parenting Plans and the like, should always be retained on file with the signed enrolment contract documents.
As always, if you identify a potential issue early, it is usually easier to resolve. If you are not sure, I strongly recommend that the school gets individualized advice.
This article was written by Fiona Manderson (Senior Associate) and delivered as part of a presentation for Associated Christian Schools (Jan 2016).