Sheriff finds children of divorcing couple should be moved to state school in light of financial difficulties

A sheriff in Edinburgh has found that 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.

The parties, who remained anonymous, were married in Scotland in 2003. There were two children of the marriage, referred to in the decision as ‘Emily’ and ‘Kate,’ who attended the same private school in England. The husband raised an action for divorce following his discovery that the defender had committed adultery.

The case was heard by Sheriff Alison Stirling. The pursuer was represented by Hayhow, advocate, and the defender by McAlpine, advocate.

Necessitate the sale of home

At the relevant date, the parties were jointly and severally liable for their children’s school fees. It was found that the pursuer, whose income had decreased significantly due to changes in his employment sector, had no capital resources from which school fees could be paid for the next chargeable academic year 2020-21, nor could the defender pay the fees from her own income as none of the companies she ran were profitable.

The pursuer had sought to discuss moving the children to a different private school with less expensive fees, but the defender had refused to do so or to allow them to sit the entrance exams for three such schools. She also refused the pursuer’s proposals to make a joint application for a bursary to their current school or have the matter determined by arbitration.

The children were described as academically talented and happy at their current school. Both found the prospect of transferring to a state school daunting, which would include adjusting to the Scottish syllabus in time to sit National 5s and Highers. In previous proceedings, the pursuer had been interim interdicted from removing the children from the school roll and from taking any steps to enrol them in state school.

In August 2020 a curator ad litem, Marion Foy, was appointed to the children. In her report to the court, she found that the children were mature enough to have views about their schooling, and they would prefer to remain at their private school if it could be afforded. In her report, she also concluded that the pursuer would be able to pay the school fees. Following the issue of this report, she was recalled by the sheriff.

It was submitted for the pursuer that, although the children expressed a wish to remain at their current school, they did not appreciate that this would necessitate the sale of their home as this had not been discussed with them. Any further views expressed in the curator’s report exceeded her remit, as she had adjudicated on the issues in dispute between the parties as to finances when she was not in a position to do so, and furthermore she had entirely misunderstood the pursuer’s position and misrepresented it in several important respects.

Very sad case

In her decision, Sheriff Stirling said of the pursuer’s evidence: “The pursuer was an impressive witness. He had produced a considerable amount of information vouching his position. He had analysed his past income and expenditure, provided vouching for that, and made projections as to his likely future income and expenditure based on that. He had had the benefit of four very lucrative brokerage contracts in recent years, and he explained convincingly why it was extremely unlikely that he would have any more of these contracts.”

In contrast, she said of the defender: “The defender was not an impressive witness. She admitted in cross-examination that there had been ‘a level of deception’ surrounding the breakdown of the marriage because of her adultery. She is therefore someone who is prepared to lie in her own interests. There were inconsistencies within her own evidence.”

Assessing the curator’s report, Sheriff Stirling said: “I do not accept the curator’s conclusions and recommendations. On the basis of partial financial information, she has concluded that the pursuer is able to afford Private School 1 fees, that he is not telling the truth and that his behaviour regarding the children’s schooling is disappointing. At proof there was a full forensic examination by Counsel for each party of all the financial evidence, including the expert accountancy evidence and the evidence of the parties who are themselves accountants.”

Assessing the evidence on the feasibility of the children attending private school, she explained: “School fees are in their nature a revenue expense, and I would not be prepared to order that they are paid out of capital in this case. The matrimonial home requires to be retained as a home for the pursuer and the children and cannot simply be sold to fund education. The capital sum payable to the defender and the dividends which are expected to be paid shortly will not cover much of the fees.”

In summation, Sheriff Stirling said: “This is a very sad case. Everyone agrees that it is in the children’s best interests to remain at Private School 1 until they complete their secondary education. The children do not want to leave Private School 1 and they are of an age where their views should be given weight. The problem is that the parents can no longer afford the fees following the breakdown of their marriage.”

She concluded: “I know that this is not what the children want, but moving to State School 1 now is the best option left for them in the circumstances. Standing the lack of agreement between the parties, specific issue orders are required.”

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