How many children attend private schools?

The Scottish Council of Independent Schools recently commissioned research into independent schools (commonly referred to as "private schools" or "fee paying schools"). Their report indicated that there were 28,724 children in independent schools in Scotland in 2020, which equates to around 4% of children in Scotland.

How are fees for private schools paid before and after separation?

Often, children are enrolled into private schools when their parents are in a relationship. Parents will contract with the school with regards to payment of fees. This can involve one parent or both parents signing an enrolment agreement committing to make the required payments. Parental separation may jeopardise the children's continued attendance at their school. On occasion, one parent may refuse to meet the ongoing cost of some or all of those fees.

How can separated couples discuss their children's future education after separation?

As family lawyers, we are often asked about what can be done after separation to ensure the continued attendance of children at private school or, to move the children to a local authority school in view of the impact of separation on family finances. There are many ways in which this can be discussed and negotiated by parents without recourse to litigation. This can be achieved through traditional negotiation, through mediation, through collaboration or through arbitration. A good insight into each of these options is available here.

Can one parent move a child from a private school to a state school?

Parents ought not to make unilateral decisions regarding important matters affecting their children including their attendance at a particular school. In the event of disagreement, a parent seeking to move their children from a private school to a local authority school will require to raise a court action inviting the court to make a determination on that specific issue.

What can a parent do to ensure that children continue to attend at a private school whether the other refuses to pay the fees?

A parent who wants their children to remain at private school also has options. If they are concerned that the other parent will seek unilaterally to remove the children from their school, they can seek an order of court (an interdict or interim interdict) to prevent this from happening. If that parent seeks for the other parent to make payment of private school fees in full or in part, they can also seek alimentary payments (financial support) of a special nature (including educational expenses) in respect of that child in a court action.

What if a parent can no longer afford private school fees after separation or divorce?

Affordability will be a key consideration in aliment cases, as was apparent from a recent case at Edinburgh Sheriff Court (X v X 2021). In her decision, Sheriff Stirling had found that the two children of a divorcing couple should be moved from their English private school to a Scottish state school after she refused to make either party liable for their children's school fees. At the time of the divorce, both parents were liable for the school fees. The sheriff held that neither party had sufficient income to allow the school fees to continue to be paid. One parent's income had decreased significantly due to changes in his employment, and the other was unable to pay school fees from her own income. The sheriff declined to order that the school fees be paid out of capital, which would have involved a sale of the former matrimonial home (which the court held was required as accommodation for the children and their father). The sheriff concluded that moving to a state school was the "best" option for the children in the circumstances, even though it was not what the children wanted to happen.

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Garry Sturrock

Senior Associate