In August the Labour government announced they were ending long-standing tax breaks that have been afforded to independent schools for decades. At present, the parents of children who chose to educate their children independently pay no VAT on those school fees . Fees for independent schools like other charitable organisations until now have been VAT exempt. From the 1st January 2025, this will change and school fees will increase by 20% in most cases.

This change will affect thousands of families across Scotland and could bring new challenges for separated or divorced parents where the responsibility for paying school fees is contained in a written agreement or in a court order.

When the court is asked to grant any order relating to a child, the welfare of the child must be the paramount consideration. For orders allocating the responsibility for the payment of a child's school fees, the court will also consider, in detail, the financial resources of the parents and their ability to meet the ongoing cost.

The impending increase is likely to be significantly higher than annual cost of living increases in fees which parents might anticipate and which have of themselves been onerous in recent years given the cost of living crisis . This could place a significant financial burden on parents that was not foreseen at the time the order was made ,or any agreement reached particularly if there are multiple children and multiple fees to be paid.

What can a parent do if they find themselves in this position?

A parent can ask the court to vary at an order granted under the Children (Scotland) Act 1995 in relation to a child. This is done by way of minute to vary procedure with the application made to the court which originally granted the order. The minute to vary process is designed to be an expeditious way of seeking orders or changes to orders upon a change of circumstances.

The parent raising the minute must demonstrate that there has been a material change in circumstances since the order was originally made and outline what they want the court to do.

What constitutes a material change in circumstances?

The law does not define what 'a material change in circumstances' is, actions are looked at on a case-to-case basis.

If a parent is unable to absorb the increase in fees and will immediately or in the short term have difficulty in paying the fees as they fall due, this may well constitute a material change in circumstances significant enough for the court to become involved again if parents cannot reach agreement about how to absorb the increase in fees.

What options are available?

The court will consider all of the evidence before it alongside the overall principle of what is in the child's best interests.

The court could be asked to share or apportion the financial responsibility between the parents to take account of the increase in fees. Alternatively, the court could be asked to grant an order providing that the child be enrolled in another school. In that event the court may also take into account the views of the child, if for example the increase is impossible for the paying parent or the non-paying parent to absorb and consideration is being given to removing the child from their school .

If a court order has been granted finding you responsible for the payment of your child's school fees and you anticipate the increase will cause financial difficulties, please get in touch with our family lawyers who will be able to talk through your options.

Contributor

Lisa Marshall

Associate