When a relationship breaks down, the question of who pays for a child's independent school fees can be one of the most contentious issues. Parents may have different priorities, or one may struggle with being able to afford the fees on top of the financial strain of separation/divorce.
A 2022 survey found that there are 29,414 pupils in independent schools in Scotland. This is the highest percentage of pupils in independent school since 2015. With the increase of children in independent schools, it is important that parents understand their legal position.
Dealing with disputes over fees
If parents cannot resolve school fees disagreements directly between them, there are various options available to assist with resolution. Each parent should instruct a solicitor to assist in negotiation. There are also alternative dispute resolution options (for example, mediation or collaborative family law) and if neither of these are appropriate, there is the option to raise court proceedings. It is usually best, for a number of reasons, to attempt negotiations out with court. However, this is not always possible and sometimes court proceedings are necessary.
What the law says
The Children (Scotland) Act 1995 s11(2)(e) allows the court to make a specific issue order. This order could be made in relation to a child's educational expenses. The court will consider various factors when determining whether they should make an order forcing a party to pay for part or all of the child's school fees. Such factors include:
Where currently educated
The court will consider where a child is currently educated. It may be that if a child already attends a school, whether a independent or state school, a move to a new school may cause unnecessary distress.
Prior intentions
Another consideration will whether, prior to the parental separation, there was a pre-planned agreement that the child would attend independent school.
Affordability
An important consideration for the court is affordability. In X v X [2021], the court considered the resources of the parties in great detail. It was decided that the children should be moved from an English independent school to a Scottish state school.
Affordability is not restricted just to 'income'. In the 2023 Scottish case of Z v X, a father attempted to appeal the decision that he was liable for 100% of school fees for the children up until he resigned from his job and one-sixth following his resignation. The father attempted to argue that he was practically bankrupt at the time of the final case hearing. The court had decided that even though the father had resigned, he had purchased a reservoir a few months prior to resigning, and they took account of the reservoir's potential proceeds of sale. The Appeal Court held that the original decision achieved an entirely fair result.
The court's decision
For all disputes involving a child, the court will not make an order unless it would be better for the child that an order is made than no order at all is made. The court must also have regard to the child's views, but they will take into account the child's age and maturity when considering what weight to attach to those views.
How we can help
Obtaining expert legal advice at an early stage can minimise the potential disruption your child may face with regards to their education. With offices and experts across Scotland, Brodies Family Law experts have a wealth of experience dealing with child and family law matters.
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