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The Battle of the School Fees.

Nov 2, 2021: 

Much like the delays faced by individuals trying to retain the family home, by way of a Mesher order. The strategies arising from court delays have seen the finely balanced dynamic equilibrium disturbed in matters relating to private school fees.  A follow up article to our recent comments in the Times (article by Catherine Baksi) 'Warring Parents Clog Up Divorce Courts'.

Many middle-class families work hard to ensure their children are able to attend fee paying schools across the country. With the UK known around the world for academic excellence, the ability to send children to public school has been seen as a hallmark of hard work and social mobility.


The breakdown of the family unit and subsequent divorce financials and child arrangement orders have always been enshrined in adversarialism. Legal reforms have assisted with providing guarantees in relation to the needs of the parties.


What of the partnership that rested heavily on traditional family stereotypes? One partner, usually the husband, on a higher income. Whilst the other partner, usually the wife, but not always, providing childcare and what is now generally terms social productivity. The cross section of finances and child arrangements arises in school fees and result in a power monopoly over decision making for the children. Whereas other finance decisions do not offer this level of access to both childcare arrangements and family finances.


Specific issues are available to parents who are in dispute, whether that be due to logistics or simply overzealous decision making by one party. Such shifts in dynamic that arises during family breakdowns is evident when in private court proceedings, the party with the least financial control is then excluded on the grounds that a change of school is not in the child’s best interest, and the more financially capable party is willing to do this.


With the division and complete isolation of finances from child arrangement orders this leaves a somewhat dissonant and confusing task of analysing for both CAFCASS and the Courts. This is unenviable and, in some ways, creates a blind spot in the bifurcation of the two matters. The cross section where private school fees meet divorce becomes a power play in litigation and can be known to meet the threshold of financial abuse or controlling behaviour.


Whilst working with clients in these positions, it is hugely important to recognise the above dynamics in advance. Whether that be the relevant party ceasing to pay fees and causing great hardship, and social embarrassment.


Often a subversive mechanism for parental alienation, due to blaming the party with fewer financial resources for the sudden change from private to state school. Or, as seen quite recently in a case study, the party with the least financial wherewithal is excluded from all decision making at the school by virtue of not being the fee-paying parent.


This has the capacity to mar the client’s impression of CAFCASS, who initially receive one-sided feedback from the school when authoring the section 7 report. As would be expected

this was picked up on by CAFCASS with limited reprieve in the aforementioned case study. The party paying the school fees, in an extremely affluent area had left the client and the subject child to undertake daily round trips to the school of over 150 miles. The case remains with listings and is likely not to return before the courts until the beginning of 2022.


This left the client to decide between diesel and any luxuries previously afforded. The particular case study referred to in short, did not begin with school fees as an overriding issue for the parties. The school fees became the point of contention upon all reasonable arguments failing in negotiations.


The strongest argument that can be made, fundamentally, is the value of social productivity in direct relation to the wealth and earning capacity of the other party. In Lord Denning’s judgement in Eves v Eves, the traditional gender roles were attributed to a standard division. Despite the case being in relation to a constructed trust between cohabitants, it demonstrates a deep-seated need to recognise the conduct of the parties, their contributions, however abstract and the values held case law that surrounds the matrimonial causes act.


As a very significant part of any child’s life, schooling and therefore private school fees should not operate as a bartering chip within divorce financials or child arrangement orders. Family law remains largely subjective and as the middle classes retain the higher stakes in relation to a sudden and dramatic reductions in standards of living. The matter of schooling and the payment of fees is deserving of specific alternative dispute resolution, providing contextual appreciation for where finances do indeed cross over with extremely fundamental aspects of child arrangements.


The two legal remedies at this time are enforcement of financials, where provision has been made that school fees should be honoured. Or to apply for a specific issue in relation to school placements, where CAFCASS will need to undertake a child focused approach, with little regard for financial levy, other than the school being rather reserved in its criticisms of the fee-paying parent. Upon reviewing the CAFCASS website, there is very little guidance in relation to this matter and Private Family Adjudication or Arbitration findings remain outside of the scope of this short review.


Furthermore, due to the delays faced by families when filing applications with the courts at this time, the paramountcy of the child does appear to be diluted by unavoidable delay. This can result in third party contract disputes with the schools for unpaid fees and added social embarrassment of sudden move to state school placement. This undeniably feeds into emotional discord arising between not only the parties but between the less financially powerful party and the children.

If you would like to speak to a member of our specialist Family Law team, please contact us for a free initial consultation.

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