School fee disputes can prove to be costly - Lucia Clark

On the break-up of a relationship, one of the most contentious issues can be private school fees. Who is going to pay for these going forward – and should the children be kept in private education at all?

In school fees cases both parties’ interests are the same – to have happy children who enjoy their education

The dilemma

Private school day fees in Scotland range from around £9,000 to £30,000 pa. According to a 2020 survey only around four per cent of Scottish children are in private education – but that rises to about 25 per cent within Edinburgh. The dilemma for families reconsidering this choice is likely to be exacerbated in the forthcoming academic year by various factors: the uncertain economic recovery from the pandemic; the likely end to the temporary freeze on school fee increases from last year; and also pending changes to private school charitable relief status (announced by the Scottish Government in December 2019, but postponed due to Covid-19).

The law

Lucia Clark is a Partner, Morton Fraser

For all disputes between parents about care arrangements for their children, including which school a child should attend, the basic principles are enshrined in the Children (Scotland) Act 1995. This sets out three founding principles: that the welfare of the child shall be the paramount consideration; that the Court shall not make any order unless that would be better for the child than making no order at all; and that the Court shall have regard to the child’s views, taking into account the child’s age and maturity.

There are then separate considerations about payment of school fees. School fees are treated as a form of maintenance (or ‘aliment’), and are over and above any usual child maintenance payments via the CMS. If parents can’t agree, the Court will consider who (if anyone) should pay, based on the income, needs, resources and any other relevant circumstances of all of the parties.

A recent decision of Edinburgh Sheriff Court (reported as X v X [2021] SC EDIN 32) emphasised that "school fees are in their nature a revenue expense and so the Court will normally look to see if these can be paid from income, as opposed to eating into capital resources”. The Judge in X v X described this as a “very sad case”. The two children involved had four and six years respectively left to attend at school. The tuition fees at their current school were £30,000 each per year, with an estimated total for the remainder of their education of between £285,000 and £331,000. The father argued that their attendance had simply become unaffordable after the separation, given the parties’ projected net incomes. The mother resisted considering alternatives until late in day, such as a move to a less expensive private school, sitting entrance exams for alternative schools, applying for bursaries, or checking places at the local state school. The Court ended up accepting the father’s position – and noted that each party had incurred legal costs of an eye-watering £100,000 each.

The solution?

Although payment of school fees might seem like a very binary issue, this kind of debate may actually benefit from mediation. The independent mediator’s role is not to make a decision, but to facilitate direct discussion between the parties to achieve a settlement. Mediation often works because it can help explore the interests behind the parties’ headline positions. In this kind of situation, in the vast majority of cases, both parties’ interests are the same – to have happy children who enjoy their education. Thinking about how to preserve and build on this common interest can be a productive way forward in such a dispute.

Another option for alternative dispute resolution is arbitration. Arbitration is more akin to the process and outcome which you might get at Court, with an arbitrator acting as the decision maker rather than a judge. One benefit is being able to choose a time which suits you – for example to have a decision before the start of the school year – rather than fitting in with the court timetable. Another benefit is privacy, rather than having a public court judgment.

Although in some family disputes, court will be the only way forward, exploring alternatives (which don’t cost £100,000) can often be best for everyone – including the children.

Lucia Clark is a Partner, Morton Fraser