Posted: 04/06/2024
At the time of a relationship breakdown, discussions between separated parents as to a child’s future schooling can prove particularly challenging. Such discussions arise at a time which is already unsettling for both separated parents and their children – and the prospect of a change of schools can cause further instability. Dealing with such issues in a constructive and pragmatic manner is key.
Potential issues which can arise for separated parents include:
All important decisions which relate to a child’s welfare require the exercise of joint parental responsibility (a concept which defines all rights and responsibilities an individual has in respect to a child) – those decisions about a child’s education, to include the choice of their schooling, must be made jointly by all those who hold parental responsibility.
If a schooling disagreement arises between separated parents, they should first, if appropriate, explore whether that is capable of resolution outside of court. Methods of non-court dispute resolution include mediation, collaborative law, round table meetings, an early neutral evaluation, or arbitration.
If having explored these non-court dispute resolution options separated parents have been unable to reach a resolution, a court application (known as a ‘specific issue order’ application) may become necessary for a determination to be made.
One method of non-court dispute resolution which would result in a final determination is arbitration; however, both parents would have to agree for such a disputed issue to be arbitrated. The advantage of arbitration is that it is normally a far quicker and more cost-effective route for reaching a conclusion – this can be particularly important in the context of a schooling dispute when deadlines for applications, registrations or entry examinations are pending.
When considering such applications, the court’s paramount consideration will be the welfare of the child, or the children, in question, and that any order made is one which the court ultimately considers to be in the child’s best interests.
If a child is attending, or it had been intended they would attend a fee-paying school, the question of how the fees will be paid is distinct from the welfare question of what school they should attend.
In the context of a relationship breakdown, when separated families are already under the financial pressure of living under two households, the continuance of private school fees will also be scrutinised. Where disagreement arises as to whether school fees are affordable, the court will give priority to ensuring that housing and income needs are met. If income and/or capital resources do allow school fees to be paid, the court can make orders for the ongoing payment of school fees from income, or the payment of a lump sum.
The recent case of GW v GH [2023] EWFC 298 (B) makes clear that even where an order has been made for children to attend a specified fee-paying school for a period of time, a judge considering the financial aspects of a case may still conclude that ongoing school fees are not affordable and not, therefore, in the best interests of the children overall.
In certain situations, separated parents may look to ‘top slice’ a fund from their capital resources, prior to the remaining balance being made available to meet housing and/or income needs. To calculate an appropriate capital school fees fund, the quantum of the school fees, extras, estimated school fees inflation, the anticipated return/tax on the fund and now, potentially, VAT on school fees, must all be considered.
It is also the case that some separated parents, who can afford setting aside a capital fund and intend for their child/children to remain at the same school for a period of time, are able to pre-pay school fees directly to the school for months or even years in advance. It may be that certain schools offer a discount for such early repayment. Indeed, in anticipation of the Labour Party’s stated policy to exclude independent schools from the VAT exemption, many parents have taken steps to pre-pay school fees to independent schools in advance of the general election – however, it is not yet known whether such legislation, if introduced, would apply retrospectively.
Even if at the time parents separate it is agreed or ordered that there will be an order for the payment of school fees, this may not be the end of the issue.
Independent school fees have not escaped inflationary increases – the Independent Schools Council reported an 8% average rise to school fees during the year 2023/24. For the paying parent who is subject to a school fees order (together with also potentially balancing inflationary increases to spousal and/or child maintenance), such increases to school fees may now make a historic school fees order unaffordable.
In such circumstances, if agreement cannot be reached as to the future payment of school fees, it may be necessary for an application to be made to court for the variation of a school fees order if the separated parents have exhausted all appropriate non-court dispute resolution routes.
These types of applications are potentially costly in themselves, and pragmatism must be exercised to ensure that the legal fees do not become disproportionate (or in themselves result in the school fees no longer being affordable).
It may also be the case that if a capital fund has been set aside at the time of an original financial settlement, that the capital fund is no longer sufficient. Again, this may be due to higher than anticipated inflationary increases to school fees and now the possibility of VAT being charged. This will also necessitate the need for discussions to be reopened as to how any shortfall can be met and, potentially, for non-court dispute resolution options, or even a court application, to be pursued.
The questions of the choice of a child’s school and whether school fees are appropriate and/or affordable for a family have long been contentious ones within family proceedings. These are often decisions parents are forced to agree, or seek to have resolved through the courts (or other means) quickly and in already fraught circumstances.
If the Labour proposals in relation to VAT and business rates relief are implemented affordability is likely to become an increasingly pressing issue in many cases. While both the Reform UK Party and the Independent Schools Council are said to be taking advice on possible legal challenges to any such changes, the possibility of an imminent increase in school fees is not something separating parents, or separated parents with existing school fees orders in place, can afford to ignore.
Issues relating to children’s schooling are best grappled with as soon as possible. The use of an appropriate form of non-court dispute resolution to resolve those matters can often be an effective means to reach a prompt, cost-effective, and satisfactory resolution. In some cases, however, the assistance of the court may still be required, and early advice will be extremely beneficial.
If you need assistance in addressing any potential disagreement with your former partner about these issues, please contact us.
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